[Federal Register: April 21, 2008 (Volume 73, Number 77)]
[Rules and Regulations]               
[Page 21467-21512]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21ap08-20]                         


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Part III

Department of Agriculture

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Forest Service

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36 CFR Part 219

National Forest System Land Management Planning; Final Rule


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 219

RIN 0596-AB86

 
National Forest System Land Management Planning

AGENCY: Forest Service, USDA.

ACTION: Final rule and record of decision.

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SUMMARY: This final rule describes the National Forest System (NFS) 
land management planning framework; sets up requirements for 
sustainability of social, economic, and ecological systems; and gives 
directions for developing, amending, revising, and monitoring land 
management plans. It also clarifies that, absent rare circumstances, 
land management plans under this final rule are strategic in nature and 
are one stage in an adaptive cycle of planning for management of NFS 
lands. The intended effects of the rule are to strengthen the role of 
science in planning; to strengthen collaborative relationships with the 
public and other governmental entities; to reaffirm the principle of 
sustainable management consistent with the Multiple-Use Sustained-Yield 
Act of 1960 (MUSYA) and other authorities; and to streamline and 
improve the planning process by increasing adaptability to changes in 
social, economic, and environmental conditions. This rulemaking is the 
result of a United States District Court of Northern California order 
dated March 30, 2007, which enjoined the United States Department of 
Agriculture (the Department, the Agency, or the USDA) from putting into 
effect and using the land management planning rule published on January 
5, 2005 (70 FR 1023) until it complies with the court's order regarding 
the National Environmental Policy Act (NEPA), the Endangered Species 
Act (ESA), and the Administrative Procedure Act (APA) (Citizens for 
Better Forestry v. USDA, 481 F. Supp 2d 1059 (N.D. Cal. 2007)). The 
purpose of this final rule is to respond to the district court's 
ruling.
    This final rule replaces the 2005 final rule (2005 rule) (70 FR 
1022, Jan. 5, 2005), as amended March 3, 2006 (71 FR 10837) (which was 
enjoined by the district court's ruling) and the 2000 final rule (2000 
rule) adopted on November 9, 2000 (65 FR 67514) as amended on September 
29, 2004 (69 FR 58055).

DATES: Effective Date: This rule is effective April 21, 2008.

ADDRESSES: For more information, including a copy of the final 
environmental impact statement (EIS), refer to the World Wide Web/
Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fs.fed.us/emc/nfma/2008_planning_rule.html. 
More information may be obtained on written request from the Director, 
Ecosystem Management Coordination Staff, Forest Service, USDA Mail Stop 
1104, 1400 Independence Avenue, SW., Washington, DC 20250-1104

FOR FURTHER INFORMATION CONTACT: Ecosystem Management Coordination 
staff's Assistant Director for Planning Ric Rine at (202) 205-1022 or 
Planning Specialist Regis Terney at (202) 205-1552.

SUPPLEMENTARY INFORMATION: The following outline shows the contents of 
the preamble, which is also the record of decision (ROD), for this 
regulation.

Decision

    Alternative M is selected as the final rule. This decision is based 
upon the ``Environmental Impact Statement--National Forest System Land 
Management Planning,'' USDA Forest Service, 2008, and the supporting 
record. This decision is not subject to Forest Service appeal 
regulations.
    Public comment on the proposed action in the draft environmental 
impact statement (EIS) (alternative A) supported some modifications of 
the proposed rule. The Department reviewed and considered these 
comments, in consultation with agency managers, and concluded the rule 
could be improved if some suggested changes were incorporated. Many 
suggested modifications contributed to the development of alternative M 
in the final EIS.

Outline

Introduction and Background
Purpose and Need for the National Forest System Land Management 
Planning Rule
Public Involvement on the Proposed Rule
     How Was Public Involvement Used in the Rulemaking 
Process?
     What General Issues Were Identified Regarding the 
Proposed Rule and Draft Environmental Impact Statement?
Alternatives Considered
     What Alternatives Were Considered by the Agency?
     What is the Environmentally Preferred Alternative?
     Decision and Rationale
     What Specific Comments Were Raised on the Proposed Rule 
and What Changes Were Made in Response to Those Comments?
Compliance With the Endangered Species Act of 1973, as Amended
Regulatory Certifications
    Regulatory Impacts
    Environmental Impact
    Energy Effects
    Controlling Paperwork Burdens on the Public
    Federalism
    Consultation With Indian Tribal Governments
    Takings Implications
    Civil Justice Reform
    Unfunded Mandates

Introduction and Background

    The Forest and Rangeland Renewable Resources Planning Act of 1974 
(88 Stat. 476 et seq.), as amended by the National Forest Management 
Act of 1976 (NFMA) (90 Stat. 2949 et seq.; 16 U.S.C. 1601-1614), 
requires the Secretary of Agriculture (the Secretary) to promulgate 
regulations under the principles of the MUSYA that set up the process 
for the development and revision of land management plans (16 U.S.C. 
1604(g)).
    The first planning rule, adopted in 1979, was substantially amended 
on September 30, 1982 (47 FR 43026), and was amended, in part, on June 
24, 1983 (48 FR 29122) and on September 7, 1983 (48 FR 40383). It is 
the 1982 planning rule (1982 rule), as amended, which has guided the 
development, amendment, and revision of the land management plans on 
all national forests and grasslands.
    The Forest Service has undertaken several reviews of the planning 
process carried out under the 1982 rule. The first review took place in 
1989 when the Forest Service, with the help of the Conservation 
Foundation, conducted a comprehensive review of the planning process 
and published the results in a summary report ``Synthesis of the 
Critique of Land Management Planning'' (1990). The critique concluded 
that the Agency spent too much time on planning, spent too much money 
on planning, and, therefore, the Forest Service needed a more efficient 
planning process.
    The Forest Service published an advance notice of proposed 
rulemaking on February 15, 1991 (56 FR 6508) for possible revisions to 
the 1982 rule. A proposed rule was published on April 13, 1995 (60 FR 
18886), however, the Secretary chose not to continue with that 
proposal.
    In response to comments on the 1995 proposed rule, the Secretary 
convened a 13-member Committee of Scientists in late 1997 to evaluate 
the Forest Service's planning process and recommend changes. In 1998, 
the Committee of Scientists held meetings across the country and 
invited public participation in the discussions. The Committee's 
findings were issued in a final report, ``Sustaining the People's 
Lands'' (March 1999). In response to many findings in the 1990 
``Synthesis of the Critique of

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Land Management Planning'' and the 1999 Committee of Scientists report, 
the Forest Service tried to prepare a rule that would provide a more 
efficient planning process. A proposed rule was published on October 5, 
1999 (64 FR 54074), and a final rule was adopted on November 9, 2000 
(65 FR 67514).
    After adoption of the 2000 rule, the Secretary received many 
comments from individuals, groups, and organizations expressing 
concerns about putting into effect the 2000 rule. In addition, lawsuits 
challenging promulgation of the rule were brought by a coalition of 12 
environmental groups from 7 States and by a coalition of industry 
groups (Citizens for Better Forestry v. USDA, No. C-01-0728-BZ-(N.D. 
Cal., filed February 16, 2001)) and (American Forest and Paper Ass'n v. 
Veneman, No. 01-CV-00871 (TPJ) (D.D.C., filed April 23, 2001)). Because 
of these lawsuits and concerns raised in comments to the Secretary, the 
Department of Agriculture started a review of the 2000 rule focusing on 
implementation. ``The NFMA Planning Rule Review,'' (USDA Forest Service 
April 2001) concluded many concerns about carrying out the rule were 
serious and needed immediate attention.
    Having considered the reports of the review teams, the Acting 
Deputy Under Secretary for Natural Resources and Environment asked the 
Chief of the Forest Service to develop a proposed rule to replace the 
2000 rule. A new planning rule was proposed on December 6, 2002 (67 FR 
72770).
    In addition, interim final rules extending the transition from the 
1982 rule to the 2000 rule were published May 17, 2001 (66 FR 27552) 
and May 20, 2002 (67 FR 35431). The second rule allowed Forest Service 
managers to elect to continue preparing plan amendments and revisions 
under the 1982 rule until a new final rule was adopted. An interim 
final rule was published September 10, 2003 (68 FR 53294) extending the 
date project decisions must conform to provisions of the 2000 rule 
until a new rule is promulgated. Finally, an interpretive rule was 
published September 29, 2004 (69 FR 58055) to clarify the intent of the 
transition section of the 2000 rule regarding the consideration of the 
best available science to inform project decisionmaking. The 2004 
interpretive rule also explicitly states that the 1982 rule is not in 
effect. Accordingly, no 1982 regulations apply to project decisions.
    The final 2005 rule was published January 5, 2005 (70 FR 1022). 
Shortly thereafter, Citizens for Better Forestry and others challenged 
it in Federal district court. In an order dated March 30, 2007, the 
United States District Court for Northern California enjoined the 
Department from putting into effect and using the 2005 rule pending 
additional steps to comply with the court's opinion for APA, ESA, and 
NEPA (Citizens for Better Forestry v. USDA, 481 F. Supp. 2d 1059 (N.D. 
Cal. 2007)). The court concluded,

    [T]he agency must provide notice and comment on the 2005 Rule as 
required by the APA since the court concludes the rule was not a 
`logical outgrowth' of the 2002 proposed rule. Additionally, because 
the 2005 Rule may significantly affect the quality of the human 
environment under NEPA, and because it may affect listed species and 
their habitat under ESA, the agency must conduct further analysis 
and evaluation of the impact of the 2005 Rule in accordance with 
those statutes.

(Citizens for Better Forestry v. USDA, 481 F. Supp. 1059, 1100 (N.D. 
Cal. 2007))

Purpose and Need for the National Forest System Land Management 
Planning Rule

    The final rule's purpose is two-fold. The primary purpose is to 
improve on the 2000 rule by providing a planning process that is 
readily understood, is within the Agency's capability to carry out, is 
consistent with the capabilities of NFS lands, recognizes the strategic 
programmatic nature of planning, and meets the intent of the NFMA, 
while making cost effective and efficient use of resources allocated to 
the Agency for land management planning. This rule is needed to address 
the limitations of the 2000 rule that were identified in the April 2001 
``NFMA Planning Rule Review.''
    This action's second purpose is in response to the court order in 
Citizens for Better Forestry v. USDA that enjoined the 2005 rule. The 
EIS supporting this ROD documents the analysis and evaluation of the 
impact of the rule in accord with the NEPA.
    Based on the results of the aforementioned reviews, principles, and 
practical considerations, there is a need for a planning rule that:
     Contains clear and readily understood requirements;
     Makes efficient use of agency staff and collaborative 
efforts;
     Establishes a planning process that can be conducted 
within agency planning budgets;
     Provides for diversity of plant and animal species, 
consistent with capabilities of NFS lands;
     Requires analyses that are within the Agency's capability 
to conduct;
     Recognizes the strategic nature of land management plans;
     Considers best available science;
     Requires public involvement in development of a monitoring 
strategy, taking into account key social, economic and ecological 
performance measures and provides the responsible official sufficient 
discretion to decide how much information is needed;
     Promotes the use of adaptive management;
     Involves the public;
     Guides sustainable management; and
     Complies with applicable laws, regulations, and policies.

Public Involvement on the Proposed Rule

 How Was Public Involvement Used in the Rulemaking Process?

    A notice of intent to prepare an EIS was published in the Federal 
Register on May 11, 2007 (72 FR 26775) with a public comment period 
ending June 11, 2007. The notice stated the Agency was considering 
reinstituting planning direction like that from the 2005 rule and 
specifically requested public comments on the nature and scope of 
environmental, social, and economic issues that should be analyzed in 
the EIS. Because of the extensive public comment already received on 
the 2005 rule, the planning directives, and the Agency categorical 
exclusion for land management planning, no public meetings were held 
for the scoping.
    The Agency received a little over 800 responses. Responses included 
advocacy for a particular planning rule, as well as suggestions for 
analyses to conduct, issues to consider, alternatives to the proposed 
action, and calls for compliance with laws and regulations.
    Some responses raised specific issues with the proposed action 
while others raised broader points of debate with management of the 
national forest system (NFS). Some respondents suggested alternative 
processes for promulgating a planning rule or alternative purposes for 
the NFS. Besides considering comments received during the scoping 
period, the Forest Service reviewed the court's opinion on the 2005 
rule in Citizens for Better Forestry v. USDA and comments previously 
collected during promulgation of the 2005 rule (70 FR 1022, Jan. 5, 
2005), agency planning directives (72 FR 4478, Jan. 31, 2007; 71 FR 
5124, Jan. 31, 2006), and the Forest Service's categorical exclusion 
for land management planning (71 FR 75481, Dec. 15, 2006).

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 What General Issues Were Identified Regarding the Proposed 
Rule and Draft Environmental Impact Statement?

    Based on comments and the aforementioned review, an 
interdisciplinary team identified a list of issues to address.
     Diversity of Plant and Animal Communities.
     Timber Management Requirements of 16 U.S.C. 1604(g).
     Identification of Lands Not Suited for Timber Production 
(16 U.S.C. 1604(k)).
     Standards and Prohibitions.
     Environmental Impact Statement.
     Best Available Science and Land Management Plans.
     Management Requirements.
    These issues are described in more detail later in this ROD.
    The proposed rule was published on August 23, 2007 (72 FR 48514), 
and the notice of availability for the supporting draft EIS was 
published in the Federal Register on August 31, 2007 (72 FR 50368). A 
copy of the proposed rule and the draft EIS have been available on the 
World Wide Web/Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fs.fed.us/emc/nfma/2007_planning_rule.html since August 16, 2007. The proposed action and 
preferred alternative identified in both documents was the 2005 rule, 
as amended. Public comments were requested on both the proposed rule 
and the draft EIS. The comment period for both documents ended on 
October 22, 2007. The notice of availability of the final EIS was 
published in the Federal Register on February 15, 2008 (73 FR 8869).
    The Forest Service received 79,562 responses. Of these, about 
78,500 are form letters. The remaining letters consist of original 
responses or form letters with added original text. Some respondents 
focused their remarks on provisions of the proposed rule, others 
concentrated on the alternatives and analyses in the draft EIS and many 
comments applied to both documents.
    Comments received on the proposed rule and draft EIS were 
consistent with, and often reiterated, the comments received during 
scoping. These comments played a key role in the decisions made in this 
ROD.

Alternatives Considered

    The Agency fully developed six alternatives, and considered seven 
alternatives that were eliminated from detailed study (40 CFR 
1502.14(A)). Alternatives considered in detail are summarized below. 
Seven additional alternatives (F-L) were considered but eliminated from 
detailed study because they did not meet some aspects of the purpose 
and need. More discussion about the eliminated alternatives can be 
found in chapter 2 of the EIS.

 What Alternatives Were Considered by the Agency?

    Alternative A (2005 rule). This alternative is the proposed action 
as originally published as a proposed rule on January 5, 2005, and 
amended on March 3, 2006, with an updated effective date and transition 
period date set out at section 219.14. Alternative A was the preferred 
alternative in the draft EIS. This alternative was slightly modified in 
response to public comments on the draft EIS. Details of this proposed 
rule are in appendix A of the EIS.
    The proposed rule describes the NFS land management planning 
framework; sets up requirements for sustaining social, economic, and 
ecological systems; and gives directions for developing, amending, 
revising, and monitoring land management plans. It also clarifies that 
land management plans under the proposed rule, absent rare 
circumstances, are strategic, and are one stage in an adaptive 
management cycle of planning for management of NFS lands. The intended 
effects of the proposed rule are to strengthen the role of science in 
planning; to strengthen collaborative relationships with the public and 
other governmental entities; to reaffirm the principle of sustainable 
management consistent with the MUSYA and other authorities; to 
establish an environmental management system (EMS) for each NFS unit; 
and to streamline and improve the planning process by increasing 
adaptability to changes in social, economic, and environmental 
conditions. Under this alternative, approval of a plan, plan amendment, 
or plan revision would be done in accord with the Forest Service NEPA 
procedures. It would be possible for one unit to approve a plan, plan 
amendment, or plan revision with a categorical exclusion (CE), a second 
unit to use an environmental assessment (EA), and a third unit might 
use an EIS depending on the nature of the decisions made in each 
respective plan approval.
    Alternative B (2000 rule). The 2000 rule at 36 CFR part 219 as 
amended is the no action alternative. Although an interim final rule 
allowed responsible officials to use the 1982 rule procedures for 
planning until a new final rule is adopted (67 FR 35434), this 
alternative assumes that responsible officials have been using the 2000 
rule procedures.
    This rule would guide development, revision, and amendment of land 
management plans for the NFS and to a certain extent, guide decisions 
for projects and activities as well. It describes the framework for NFS 
land and natural resource planning; reaffirms sustainability as the 
goal for NFS planning and management; sets up requirements for the 
carrying out, monitoring, evaluating, amending, and revising of land 
management plans. The intended effects of the rule are to strengthen 
and clarify the role of science in planning; to strengthen 
collaborative relationships with the public and other government 
entities, to simplify, clarify, and otherwise improve the planning 
process; and to reduce burdensome and costly procedural requirements. 
Plan revisions would require an EIS while plan amendments would follow 
agency NEPA procedures, which prescribe the appropriate level of NEPA 
documentation based on the significance of effects. The 2000 rule, as 
amended, is found in appendix B of the EIS.
    Alternative C (1982 rule). Under this alternative, the 1982 rule at 
36 CFR part 219, as it existed before promulgation of the 2000 rule, 
would guide development, revision, and amendment of land management 
plans for the NFS. This rule requires integration of planning for 
national forests and grasslands, including the planning for timber, 
range, fish, wildlife, water, wilderness, and recreation resources. It 
includes resource protection activities such as fire management and the 
use of minerals and other resources. This rule also established 
requirements for plan and animal diversity such as providing habitat to 
ensure viable populations of native and desired non-native vertebrate 
species and identifying and monitoring populations of management 
indicator species. Case law has applied the monitoring of management 
indicator species population trends to projects and activities. Plan 
revisions and significant amendments would require an EIS while non-
significant plan amendments would follow agency NEPA procedures, which 
prescribe the appropriate level of NEPA documentation based on the 
significance of effects. The 1982 rule, as amended, is in appendix C of 
the EIS.
    Alternative D. This alternative is the same as the proposed action 
(alternative A) but without either the environmental management system 
(EMS) requirements or references to EMS at section 219.5 in the 
proposed action. The EMS would not be part of the plan set of 
documents. Setting up an EMS would not be required before plan 
approval, and an EMS would not mark the end of the transition period.

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    Alternative E. Alternative E is the same as the proposed action 
(alternative A) but modified by (1) removing EMS requirements and all 
references to EMS, (2) adding standards as a plan component, (3) adding 
more direction for identifying lands suitable for timber production and 
timber harvest, and (4) adding various timber management requirements 
(16 U.S.C. 1604(g)) and limitations on timber removal (16 U.S.C. 1611) 
from the NFMA.
    Alternative M. This alternative is the preferred alternative in the 
final EIS. Alternative M is the same as alternative E except that it 
requires an EMS and it places requirements for long-term sustained-
yield capacity and culmination of mean annual increment in agency 
directives.
    Alternative M directs the Chief to establish direction for EMS in 
the Forest Service directives. The directives will formally establish 
national guidance, instructions, objectives, policies, and 
responsibilities leading to conformance with International Organization 
for Standardization (ISO) and adopted by the American National 
Standards Institute (ANSI) as ``ISO 14001:2004(E) Environmental 
Management Systems--Requirements With Guidance for Use.'' The ISO 14001 
is presently available for a fee from the ANSI Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://webstore.ansi.org/ansidocstore/default.asp.
    Under Alternative M, the EMS scope is changed so that the 
responsible official is the person authorized to identify and establish 
the scope and environmental aspects of the EMS, based on the national 
EMS and ISO 14001, with consideration of the unit's capability, needs, 
and suitability. The detailed procedures to establish scope and 
environmental aspects are being developed in a national technical guide 
and the Forest Service Directives System.
    Alternative M allows a responsible official to conform to a multi-
unit, regional, or national level EMS as an alternative to establishing 
an EMS for a specific unit of the NFS. The responsible official will 
have the responsibility to deal with local concerns in the EMS. The 
unit EMS will provide the opportunity either to conclude that the 
higher level EMS adequately considers and addresses locally identified 
scope and significant environmental aspects, or to address project-
specific impacts associated with the significant environmental aspects. 
The complete details for how the Agency will do this are being 
developed in a national technical guide and the Forest Service 
Directives System. This guidance is planned for release during fiscal 
year 2008.
    Alternative M does not require an EMS prior to approving a plan, 
plan revision, or plan amendment. However, it does provide that no 
project or activity approved under a plan developed, amended, or 
revised under the requirements of this subpart may be implemented until 
the responsible official establishes an EMS or the responsible official 
conforms to a multi-unit, regional, or national level EMS. Furthermore, 
alternative M has several additional minor changes described in the 
final EIS.

 What Is the Environmentally Preferable Alternative?

    The Department has identified two environmentally preferable 
alternatives, alternative B and alternative M. They are identified as 
environmentally preferred for different reasons. It should be noted 
that the presence or absence of EMS in the rule wording of these two 
alternatives is not a factor in their identification as environmentally 
preferable because the Agency will establish an EMS regardless of the 
alternative selected. The Agency fully intends to comply with Executive 
Order 13423--Strengthening Federal Environmental, Energy, and 
Transportation Management by implementing an EMS. In alternative B, all 
Agency direction concerning EMS would come from Agency directives. In 
alternative M, Agency direction concerning EMS would come from the 
planning rule and from Agency directives.
    Alternative B: Alternative B is one of two environmentally 
preferable alternatives. Although neither of the environmentally 
preferable alternatives has direct environmental effects, the 
procedural requirements of alternative B provide more surety that 
explicit environmental protections will be set up during land 
management planning. For example, alternative B requires the setting up 
of a national science advisory board and the possible setting up of 
regional advisory boards. It calls for use of broad-scale analyses to 
set the context for decisionmaking and specific actions for 
coordination and interaction with other Federal agencies, State and 
local governments, American Indian Tribes and Alaska Native 
Corporations, interested individuals and organizations. Alternative B 
calls for providing for species viability and requiring that the 
planning process includes development and analysis of information about 
a specified list of ecosystem and diversity components. The same 
factors making alternative B one of the environmentally preferable 
alternatives makes it unworkable. As previously described, alternative 
B's requirements are so prescriptive they cannot be done within agency 
resources. The cost and complexity of carrying out alternative B were 
major factors in the Department's decision to develop a new planning 
rule and in the decision not to select alternative B in this ROD.
    Alternative M: Alternative M is the other environmentally 
preferable alternative. The rule contains substantive requirements for 
protecting important resources such as soil, water, wildlife habitat, 
and aesthetics. It requires NFS lands contribute to the sustainability 
of ecosystems within the capability of the land, and requires species-
specific plan components be developed in situations where broader 
ecosystem diversity components might not meet the habitat needs of 
threatened and endangered species, species-of-concern, and species-of-
interest. The Forest Service directives provide substantial additional 
guidance aimed at ensuring resource protection and restoration. Another 
reason for identifying alternative M as an environmentally preferable 
alternative is the streamlined planning process it engenders will allow 
units of the NFS to respond more quickly to new information or changed 
conditions. The flexibility to respond quickly might, in some 
situations, allow the Agency to better mitigate or avoid threats to 
national forest resources by allowing variances or amendments to plans 
to occur without the delay caused by time-consuming NEPA procedures. 
This flexibility contributed to the decision to select alternative M.

 Decision and Rationale

Decision

    Alternative M is selected as the final rule. This decision is based 
on the Environmental Impact Statement--National Forest System Land 
Management Planning, USDA Forest Service, 2008, and its supporting 
record. This decision is not subject to Forest Service appeal 
regulations.
    Public comment on the proposed action in the draft EIS (alternative 
A) supported some modifications of the proposed rule. The Department 
reviewed and considered these comments, in consultation with Agency 
managers, and concluded the rule could be improved if some suggested 
changes were incorporated. Many suggested modifications contributed to 
the development of alternative M in the final EIS.

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Rationale for the Decision

    The following paragraphs describe a process of elimination for 
selecting alternative M, by first discussing the alternative's 
responsiveness to the purpose and need and then each alternative's 
responsiveness to significant issues identified through public 
comments.
 Response to Purpose and Need
    Alternatives A, D, and E, and M meet the purpose and need for 
action previously described in this document. In contrast, alternatives 
B and C do not meet the purpose and need for action.
    Alternative B, the 2000 rule, was not selected because it does not 
meet the purpose and need for action. The 2001 NFMA Planning Rule 
Review and the subsequent 2002 business model workshop identified a 
number of shortcomings with the 2000 rule and these shortcomings 
constitute a large part of the purpose and need for action. This 
alternative is identified as the no action alternative in the EIS.
    First, alternative B does not meet the purpose and need for a rule 
to have clear and readily understood requirements. This rule has both 
definitions and analytical requirements that are unclear and complex, 
and, therefore, subject to inconsistent implementation across the 
Agency. Second, alternative B does not meet the need for a rule that 
makes efficient use of agency staff and collaborative efforts. This 
alternative includes unnecessarily detailed procedural requirements for 
scientific peer reviews, broad-scale assessments, monitoring, and 
science advisory boards. These detailed analysis requirements would 
cause land management plan revisions to take an expected 6 years to 
complete. Although this rule requires public involvement, it would be 
difficult for members of the public to remain engaged in such a 
protracted process and even agency staff turnover would likely 
interrupt such a long process. With a 6-year revision process, 
approximately 48 plans would be in some stage of revision during a 15-
year cycle. Funding this many simultaneous revisions would likely 
exceed the Agency's budget--failing to meet another part of the purpose 
and need to establish a planning process that can be conducted within 
agency planning budgets. The monitoring requirements in alternative B 
are overly prescriptive and do not provide the responsible official 
sufficient discretion to decide how much information is needed--
contrary to the purpose and need to establish monitoring requirements 
that provide the responsible official sufficient discretion to decide 
how much information is needed.
    Alternative C, the 1982 rule, was also not selected because it does 
not meet the purpose and need for action. It should be noted that 
normally an action alternative would not be studied in detail if it 
does not fully meet the purpose and need. However, the Agency is in 
litigation. The plaintiffs argue that the 1982 rule, not the 2000 rule, 
is in effect as a result of the court's injunction of the 2005 rule. 
Because the proposal is to revise an existing rule, taking no action 
would entail continuing under the existing rule. Whether one believes 
the 2000 rule or the 1982 rule is the existing rule or ``no action 
alternative,'' both have been considered. Furthermore, all but one of 
the issues concerning the proposed action is based on the public's many 
years of experience with the 1982 rule. Accordingly, the 1982 rule 
provides a useful basis for comparison of the alternatives.
    Alternative C, like alternative B, does not meet the need to make 
efficient use of agency staff and collaborative efforts because of the 
detailed analysis requirements, including benchmarks that would cause 
land management plan revisions to take an average of 5 years to 
complete. Because of the this long planning period, Alternative C has 
the same problems with the public remaining involved, agency staff 
changes, and exceeding the Agency's budget as Alternative B has. 
Approximately 40 plans would be in some stage of revision during a 15-
year cycle. Funding this many simultaneous revisions would likely 
exceed the Agency's budget--failing to meet another part of the purpose 
and need to establish a planning process that can be conducted within 
Agency planning budgets. Alternative C does not meet the purpose and 
need to provide for diversity of plant and animal species consistent 
with capabilities of NFS lands. The requirements in alternative C to 
maintain viable populations of native and desired non-native vertebrate 
species do not recognize the limitations of suitability and capability 
of the specific land area and are a technical impossibility given that 
the cause of the decline of some species is outside the Agency's 
control. Further, the requirement to monitor management indicator 
species (MIS) populations at the plan and project level has proved 
difficult.
    With alternatives B and C eliminated, the remaining four 
alternatives, A, D, E, and M, were compared with respect to the issues 
identified from public comments.
 Response to the Issue of Diversity of Plant and Animal 
Communities
    Concerns were expressed that the proposed rule procedures for 
diversity weaken protection for fish and wildlife species because the 
rule does not include the requirement for managing habitat to maintain 
viable populations.
    The NFMA requires the planning rule to specify guidelines that 
provide for diversity of plant and animal communities based on the 
suitability and capability of the specific land area in order to meet 
multiple-use objectives and provide, where appropriate, to the degree 
practicable, for steps to be taken to preserve the diversity of tree 
species (16 U.S.C. 1604(g)(3)(B)). Although providing a mandate of 
viability is within this authority, NFMA does not mandate viability of 
species. Rather, species diversity appropriate to the area covered by a 
plan is NFMA's goal. Further, viability would place an impractical 
burden on the Agency.
    The view held by some, that there must be 100 percent certainty 
that species viability will be maintained, is a technical impossibility 
given that the cause of the decline of some species is outside the 
Agency's control. For example, viability of some species on NFS lands 
might not be achievable because of species-specific distribution 
patterns (such as a species on the extreme and fluctuating edge of its 
natural range), or when the reasons for species decline are due to 
factors outside the Agency's control (such as habitat alteration in 
South America causing decline of some neotropical birds), or when the 
land lacks the capability to support species (such as a drought 
affecting fish habitat). Moreover, the number of recognized species 
present on the units of the NFS is very large. It is clearly 
impractical to analyze all native and desirable non-native vertebrate 
species, and previous attempts to analyze the full suite of species by 
groups, surrogates, and representatives has had mixed success in 
practice. Furthermore, focus on the viability requirement has often 
diverted attention and resources away from an ecosystem approach to 
land management that, in the Department's view, is the most efficient 
and effective way to manage for the broadest range of species with the 
limited resources available for the task.
    Alternatives A, D, E, and M meet the NFMA diversity requirements by 
establishing a goal of providing appropriate ecological conditions for 
plant and animal communities,

[[Page 21473]]

requiring a framework for sustaining these conditions in plans, and 
giving the responsible official discretion to decide what plan 
components should be included in the plan for species. Alternatives A, 
D, E, and M require the planning directives for sustaining ecological 
systems to be consistent with the concepts of ecosystem diversity and 
species diversity. In addition, guidance is currently included in the 
Forest Service Directives System for providing self-sustaining 
populations of species-of-concern. A self-sustaining population is one 
that is sufficiently abundant and has appropriate population 
characteristics to provide for its persistence over many generations. 
Species-of-concern are species for which the responsible official 
determines that management actions might be needed to prevent listing 
under the ESA. This issue did not result in the further elimination of 
the remaining four alternatives, A, D, E, and M.
 Response to the Issue of Requiring an Environmental Impact 
Statement
    There is concern that by not requiring an EIS for plan development 
and plan revision, the proposed rule would not require consideration of 
a full range of planning alternatives, would reduce public involvement 
in land management planning, and would eliminate consideration of 
cumulative effects or leave such consideration to project-level 
analyses.
    Alternatives A, D, E, and M allow an iterative approach to 
development of a plan, plan amendment, or plan revision. Under these 
alternatives, a plan is developed as various options for plan 
components are merged, narrowed, adjusted, added, and eliminated during 
successive rounds of the collaborative process. The term ``option'' is 
used to differentiate it from ``alternative'' as used in the NEPA 
process. The difference between alternatives and options is that 
options are developed to address specific issues or groups of issues. 
For example, a collaborative process to develop a proposal for a plan 
revision or plan amendment might identify differences of opinion 
concerning desired conditions for an area with respect to mechanized 
use. Options for mechanized use would then be developed. Where there 
are points of agreement on other desired conditions, there would be no 
need to develop options. An option could also be developed as a 
complete alternative to a proposal. If the responsible official 
determines the plan revision or amendment can be categorically excluded 
from documentation in an EA or EIS, no alternatives would be developed. 
If further NEPA analysis and documentation are required, appropriate 
alternatives would be developed from the options.
    The difference in public participation between previous planning 
rules and alternatives A, D, E, and M is whether public participation 
occurs inside or outside the NEPA procedures. As discussed in the EIS, 
public involvement requirements in these alternative rules exceed those 
required for an EIS under NEPA. Under these alternatives, the 
responsible official must provide opportunities for the public, 
Federal, State, and local agencies, and Tribal governments to 
collaborate and participate openly and meaningfully in the planning 
process. Specifically, as part of plan development, plan amendment, and 
plan revision, the responsible official must involve the public in 
developing and updating a comprehensive evaluation report, establishing 
the components of a plan, and designing the monitoring program. Public 
notice must also be provided at initiation of plan development, 
revision, or amendment. Plan development, plan revision, and plan 
amendment are subject to a 90-day comment period and a 30-day objection 
period. Public notice must also be provided at the point of approval. 
These public involvement requirements would apply even if a land 
management plan decision is categorically excluded from further 
analysis and documentation in an EA or EIS.
    In contrast, plan development and revision under the 1982 rule 
involving an EIS required public notice at initiation of plan 
development or revision, a minimum three-month public comment period 
for draft plans and draft EISs, public notice in a record of decision 
at the point of approval, and an administrative appeal process.
    Experience in planning processes under the 2005 rule has shown that 
the collaborative process is very effective and successful in engaging 
the public. Alternatives A, D, E, and M all share the same requirements 
for public involvement as the 2005 rule.
    Throughout 28 years of land management planning, the Agency has 
learned that tiering to the cumulative effects analysis in a plan EIS 
did not provide nearly as much useful information at the project or 
activity level as the Agency had expected. The effects analyses in plan 
EISs were often too general to meet analytical needs for projects and 
activities. Meaningful cumulative effects analyses cannot be conducted 
until project design and location are known or at least reasonably 
foreseeable. Plan-level analysis would, however, evaluate existing 
conditions and broad trends at the geographic scale of the planning 
area. The Department believes these rules provide for the development 
and consideration of planning alternatives with much more robust public 
participation than previously afforded. The Department also believes 
that analysis of current conditions and trends required by these rules 
constitutes an appropriate evaluation of broader scale settings and 
influences that merit recognition in the planning process. Cumulative 
effects analysis at the project scale will continue when designs and 
locations are at least reasonably foreseeable. These issues did not 
result in the further elimination of the remaining four alternatives, 
A, D, E, and M.
 Response to the Issue of Best Available Science
    There was a concern the proposed rule requiring the responsible 
official only to take into account the best available science (sec. 
219.11) weakens the consideration of science, while the 2000 rule 
required the responsible official to ensure the plan was consistent 
with the best available science. Respondents said the planning rule 
should ensure plans are consistent with best available science.
    The Department believes it is essential that land management plans 
be based on current, relevant science. Public comment on the EIS 
clearly showed strong support for incorporating science into the 
planning process. The Department believes alternatives A, D, E, and M 
are equally responsive to the desire to increase effective use of 
relevant science in the planning process. These alternatives have 
requirements to document how science was considered and that science 
was appropriately interpreted and applied. Further, these alternatives 
allow the responsible official to use independent peer review, science 
advisory boards, and other review methods. Alternative M differs 
slightly from alternatives A, D, and E because the detailed procedural 
requirements to address risks and uncertainties are currently in Agency 
directives instead of the rule.
    The words ``take into account'' were used in the proposed action 
(alternative A) and alternatives D, E, and M instead of the words of 
the 2000 rule, which used ``consistent with'' because ``take into 
account'' better expresses that formal science is just one source of 
information for the responsible official and only one aspect of 
decisionmaking. When making decisions, the responsible

[[Page 21474]]

official also considers public input, competing use demands, budget 
projections, and many other factors as well as science. The Department 
believes that this wording gives clearer and stronger direction as to 
what is expected of the responsible official in developing the plan 
document or set of documents and in considering the best available 
science.
    This issue did not result in the further elimination of the 
remaining four alternatives, A, D, E, and M.
 Response to the Issue of Management Requirements
    There is a concern the proposed planning rule does not include 
minimum specific management requirements as the 1982 rule did at 
section 219.27, and that the lack of management requirements in the 
planning rule would reduce environmental protections resulting in 
significant environmental impacts including reduced environmental 
protection in project design and implementation.
    The Department believes that less specific planning guidance is 
needed after decades of experience implementing NFMA. The proposed 
planning rule (alternative A) and alternatives D, E, and M provide a 
flexible process that can be applied to issues associated with local 
conditions and experience with implementing individual plans. The 
minimum specific management requirements in the 1982 rule are not 
required by NFMA--perhaps with good reason. The Department believes it 
is important not to include overly prescriptive requirements in a 
planning rule that unnecessarily limit a responsible official's 
discretion to develop, revise, or amend a land management plan tailored 
to local conditions.
    There has always been a tension between providing needed detailed 
direction in a planning rule and discretion of the responsible 
official. Project and activity decisions by a responsible official are 
not only constrained and guided by a large body of law, regulation, and 
policy; they are also guided by public participation and administrative 
oversight. Public participation plays an important role in identifying 
unintended consequences of a proposed action. Additionally, 
administrative oversight conducted through management reviews, and the 
Agency's appeals and objections processes provide an additional check 
on a responsible official's exercise of discretion. Because every issue 
cannot be identified and dealt with in advance for every situation, the 
Department must rely on the judgment of the responsible official to 
make decisions based on laws, regulation, policy, sound science, public 
participation, and oversight.
    This issue did not result in the further elimination of the 
remaining four alternatives, A, D, E, and M.
 Response to the Issue of Timber Management Requirements of 16 
U.S.C. 1604(g)
    Concerns were expressed that the proposed rule guidance for timber 
resource management (sec. 219.12(b)(2)) was inadequate because it did 
not include the specificity of the 1982 rule. Further, some respondents 
believe the timber management requirements from NFMA are legally 
required to be in the regulations.
    The Department believes alternatives A, D, E, and M all meet the 
requirements of NFMA at section 1604(g). The difference among 
alternatives with respect to this issue is whether the requirements 
will be in the rule or in the Forest Service directives. The Department 
believes timber management using good land stewardship practices will 
occur regardless of which approach is taken. Moreover, the Department 
believes the wording in the proposed rule (alternative A) meets the 
NFMA requirement in 16 U.S.C. 1604(g) by directing the Chief of the 
Forest Service to include the timber management requirements of section 
1604(g) in the Forest Service Directives System. However, the 
Department also understands and respects the view that if the 
requirements are in the rule, they are afforded greater visibility. 
Accordingly, to eliminate this potential controversy, alternatives E 
and M were selected over alternatives A and D, because they include the 
NFMA timber management requirements (16 U.S.C. 1604(g)) where 
alternatives A and D do not.
 Response to the Issue of Identification of Lands Not Suited 
for Timber Production (16 U.S.C. 1604(k))
    Concerns were expressed that the proposed rule guidance for 
identifying lands not suited for timber production (sec. 219.12(a)(2)) 
was insufficient because it did not include the detail that was in 
earlier rules and that not including this detail represented an 
elimination of resource protection standards.
    The Department believes alternatives A, D, E, and M all meet the 
requirements of NFMA at section 1604(k). The difference among 
alternatives with respect to this issue is whether the requirements 
would be in the rule or in the Forest Service directives. The 
Department believes the identification of lands not suited for timber 
production will properly occur pursuant to section 1604(k) regardless 
of which approach is taken. Both the proposed rule (alternative A) and 
alternative D provide a framework for consideration of lands not suited 
for timber production, but rely on the Forest Service directives as a 
means to provide further detail to accomplish this requirement. 
Alternatives E and M include additional procedural requirements to 
identify land as not suitable for timber production where technology is 
not available for conducting timber harvest without causing 
irreversible damage to soil, slope, or other watershed conditions or 
substantial and permanent impairment of the productivity of the land, 
and where there is no reasonable assurance that such lands can be 
adequately restocked within 5 years after final regeneration harvest. 
As in the discussion of timber management requirements, the Department 
understands and respects the view that if detailed guidance for 
identifying lands not suited for timber production is in the rule, it 
is afforded greater visibility. Accordingly, to eliminate this 
potential controversy, alternatives E and M were selected over 
alternatives A and D, because they include such detailed guidance in 
the rule.
 Response to the Issue of Standards and Prohibitions
    Concerns were expressed that the proposed rule limited land 
management plans to strategic plan components and did not specifically 
allow more conventional components, such as standards, that could 
regulate or limit uses and activities.
    The Department believes plans are more effective if they include 
more detailed descriptions of desired conditions, rather than long 
lists of prohibitive standards or guidelines developed in an attempt to 
anticipate and address every possible future project or activity and 
the potential effects such projects could cause. For example, standards 
could have been included that precluded vegetation treatment during 
certain months or for a buffer for activities near the nest sites of 
birds sensitive to disturbance during nesting. However, topography, 
vegetation density, or other factors may render such prohibitions 
inadequate or unduly restrictive in specific situations. A thorough 
desired condition description of what a species needs is often more 
useful than a long list of prohibitions.

[[Page 21475]]

    In reviewing public comments, the Department concluded that the 
argument for excluding standards from a planning rule so as not to 
limit a responsible official's discretion cuts both ways. Just as 
standards and prohibitions in a planning rule limit a responsible 
official's discretion, not allowing them also limits a responsible 
official's discretion in developing, revising, and amending a land 
management plan. Recognizing the ecological, economic, and social 
diversity across the NFS, there might be circumstances where certain 
standards or prohibitions would be appropriately included in a land 
management plan. Accordingly, the Department believes it is important 
to explicitly allow a responsible official the flexibility to include 
standards and prohibitions in a land management plan.
    Alternatives E and M were selected over alternatives, A and D, 
because alternatives E and M explicitly allow standards and 
prohibitions to be included in land management plans.
 Consideration of Environmental Management System (EMS)
    After considering the preceding issues, alternatives E and M 
remained for selection. EMS was included in the proposed action because 
the Department is committed to complying with Executive Order 13423, 
requiring the head of each Federal agency to put into effect an EMS as 
the primary management approach for addressing environmental aspects of 
internal agency operations and activities, and because the Department 
believes it will enhance adaptive planning and should be part of the 
land management framework. The Department is committed to conform to 
ISO 14001. The Department is required by E.O. 13423 and instructions 
for implementing the E.O. to implement an EMS by December 2008.
    The Forest Service has a long history of adaptive management and 
the concepts associated with EMSs. The ``Plan-Do-Check-Act'' cycle of 
an EMS can be found in plan implementation strategies designed for 
forest plans developed under the 1982 rule. The concept of adaptive 
management has been a component of Forest Service planning rules dating 
back to 1995 where it was identified as a cornerstone of ecosystem 
management. Although systems were developed to provide an adaptive 
approach to management, in the press of business the ``Check--Act'' 
portions of the system were only sporadically accomplished. The 
Department considered relying solely on Agency directives to implement 
the Executive order for land management planning--as reflected in 
alternatives B, C, D, and E, but believes incorporating EMS in the 
planning rule better integrates adaptive management and EMS in Forest 
Service culture and land management planning practices.
    The proposed rule (alternative A) requires the responsible official 
to establish an EMS for each unit of the NFS, the scope of which was to 
include at least the land management planning process. Each unit 
revising a plan using the proposed rule procedures would be required to 
have an EMS in place before approval of the revised plan. Plan 
amendments could not be made after the end of the 3-year transition 
period if an EMS was not in place. These requirements generated 
management concerns during initial efforts to create unit EMSs because: 
(1) EMS was perceived to be redundant to existing management systems; 
(2) wording about the scope of the EMS covering the land management 
planning process was too broad, resulting in inconsistent application; 
(3) requiring an EMS prior to approving a revision was perceived as an 
obstacle to completing the planning process, that is, it is more 
logical to revise plans first, then use an EMS to manage environmental 
aspects under the new plan rather than to prepare an EMS before or 
concurrent with planning; (4) the proposed rule requirement at section 
219.5 to create an EMS on every administrative unit of the NFS did not 
permit the Agency to realize efficiencies by establishing a multi-unit, 
regional, or national level EMS; and (5) independently developing of 
the ISO 14001 protocol from the start for every administrative unit 
proved to be too costly and unwieldy.
    Although the Agency recognizes concerns about potential redundancy 
in management systems due to EMS requirements, the Agency is committed 
to integrating EMS with existing management systems or modifying 
existing systems to be consistent with EMS. Alternative M was crafted 
to address these remaining management concerns. First, regarding 
redundancy with existing agency processes, this alternative would allow 
the Chief of the Forest Service to establish detailed procedures in the 
directives to create an EMS that reduces or eliminates redundancy. 
Second, the wording stating that the scope of an EMS will include the 
entire planning process described in the rule is removed in alternative 
M and replaced with wording to the effect that the scope will include 
environmental aspects as determined by the responsible official in a 
unit EMS or established in a multi-unit, regional, or national level 
EMS. The EMS scope is changed so that the responsible official is the 
person authorized to identify and establish the scope and environmental 
aspects of the EMS, based on the national EMS and ISO 14001, with 
consideration of the unit's capability, needs, and suitability. The 
detailed procedures to establish scope and environmental aspects are 
being developed in a national technical guide and the Forest Service 
directives. Third, alternative M does not require an EMS to be in place 
before developing or revising a plan. It does, however, state that no 
project or activity approved under a plan developed, amended, or 
revised under the rule may be implemented until the responsible 
official either establishes a unit EMS or conforms to a multi-unit, 
regional, or national level EMS. The Department believes this change 
from the proposed rule will improve integration of EMS into the plan 
development and revision process by allowing plan components to inform 
the identification of environmental aspects in an EMS. Fourth, 
alternative M allows a responsible official to conform to a multi-unit, 
regional, or national level EMS as an alternative to establishing an 
EMS for a specific unit of the NFS. The responsible official will have 
the responsibility to deal with local concerns in the EMS. The unit EMS 
will provide the opportunity either to conclude that the higher level 
EMS adequately considers and addresses locally identified scope and 
significant environmental aspects, or to address project-specific 
impacts associated with the significant environmental aspects. 
Administrative units that do not have an EMS will satisfy the 
requirement in section 219.5 after they develop an EMS that conforms 
with the national EMS and either adds environmental aspects and 
components under the local focus area or determines that the national 
EMS focus areas sufficiently identify and deal with the local unit's 
environmental aspects and components. The Department believes this 
modification will provide the Forest Service flexibility to determine 
the appropriate scope of an EMS. Finally, alternative M directs the 
Chief to establish direction for EMS in the Forest Service directives. 
The directives will formally establish national guidance, instructions, 
objectives, policies, and responsibilities leading to conformance with 
ISO 14001. By letter of direction from the Chief and through its 
directives, the Forest Service will implement a national EMS applicable 
to

[[Page 21476]]

all administrative units of the Forest Service.
    Implementation of the EMS will be governed by the Forest Service 
directives. A technical guide is being prepared for use by EMS managers 
and an EMS handbook is being developed for use in the field. The scope 
of the EMS will address the goals of EO 13423, nationally identified 
land management environment aspects, and as appropriate, local 
significant environmental aspects.
    The EMS will be designed to conform to the ISO 14001 standard, as 
required by section 219.5(c). Audit procedures will be established in 
the technical guide or directives. Conformance will be determined by 
the procedures detailed in the directives for the EMS. A ``non-
conformity'' identified by a management review or audit under these EMS 
procedures is not a failure to conform to the ISO 14001 standard, per 
section 219.5(c), but part of the Plan-Do-Check-Act (P-D-C-A) cycle of 
continuous improvement that makes up the ISO conformant EMS. A non-
conformity would be followed up with preventive or corrective action 
which leads to continuous improvement in environmental performance. 
Such a ``non-conformity'' is a normal part of the EMS P-D-C-A process 
and does not constitute a failure to conform to the ISO 14001 standard 
as required by section 219.5(c).
    Alternative M resulted as the final land management planning rule 
not only through a reasoned choice among the alternatives, but also 
through an iterative approach to alternative development by which the 
Agency modified the proposed action and alternatives and developed an 
additional alternative in response to public comments. Details 
concerning each change between the proposed rule (alternative A) and 
the final rule (alternative M) are discussed in the section-by-section 
portion of this preamble.

 What Specific Comments Were Raised on the Proposed Rule and 
What Changes Were Made in Response to Those Comments?

    Each comment received consideration in the development of the final 
rule. A response to comments on the draft EIS and the proposed rule may 
be found in the response to comments appendix of the EIS located on the 
World Wide Web/Internet (see ADDRESSES).

General Comments

    The Department received the following comments not specifically 
tied to a particular section of the 2007 proposed rule.
    Comment: Guidance for management of individual resources and uses. 
Some respondents commented on a variety of issues such as access, air, 
conversion of hardwood stands to pine monoculture, soil and water, 
carbon storage, climate change, developed recreation, dispersed 
recreation, eco-tourism, ecosystem services, grazing, habitat for 
threatened and endangered species, habitat for fish and wildlife, 
heritage resources, historic range of variability, hunting, late 
successional reserves, mining, non-Federal lands, off-road vehicle use, 
oil and gas development, old growth forest conservation, parks and 
preserves, preservation, recreation, resilience to disturbance, 
restoration, rural communities, soil conservation, timber harvest, 
water quality, watersheds, weed-free ecosystems, wilderness, and 
wildlife. The respondents wanted issues about the management of these 
resources discussed in the final rule or for the rule to require 
management toward a particular emphasis, such as protection or 
conservation of biodiversity, ecosystem integrity, ecosystem 
sustainability, grizzly bears, heritage resources, national forests, 
old growth, opportunities for education and scientific research, 
primitive recreational opportunities, roadless area protection, 
roadless characteristics, scenery, soils, undisturbed forests, viable 
populations of wildlife, watershed protection, wilderness, wildlife, or 
the production of timber, minerals, oil and gas, or other commodities. 
One respondent suggested the final rule should incorporate specific, 
enforceable timetables for the processing of right-of-way applications 
for wireless communications infrastructure and encourage the 
infrastructure on NFS lands. The Virginia Department of Environmental 
Quality supplied suggestions to protect water quality and other 
resources for national forests in the State of Virginia.
    Response: The Agency agrees the issues raised are important. 
However, the final rule is intended to provide overall direction for 
how plans are developed, revised, and amended. The final rule does not 
provide direction for the management of any specific resource. This 
type of guidance is properly found in the plans themselves or in the 
subsequent decisions regarding projects and activities on a particular 
national forest, grassland, prairie, or other comparable administrative 
unit. Those communities, groups, or persons interested in these 
important issues can influence plan components and monitoring programs 
by becoming involved in planning efforts throughout the process, 
including the development and monitoring of the plan, as well as the 
development of proposed projects and activities under the plan. The 
Agency is committed to reducing threats to the Nation's forests and 
grasslands, as discussed in the USDA Forest Service Strategic Plan: FY 
2007-2012. These threats include: (1) The risk of loss from 
catastrophic wildland fire caused by hazardous fuel buildup; (2) the 
introduction and spread of invasive species; (3) the loss of open space 
and resulting fragmentation of forests and grasslands that impair 
ecosystem function; and (4) unmanaged recreation, particularly the 
unmanaged use of off-highway vehicles. The Agency forwarded comments 
from the State of Virginia to the staff of the George Washington and 
Jefferson National Forests.
    Comment: Climate change. Some respondents felt it was imperative 
the rule contain specific direction to address the problem of global 
warming and climate change. They suggested the rule should set forth a 
strategy and require plans that anticipate and provide for the likely 
effects of climate change and result in NFS lands being managed to 
reduce global warming. Some believe that the proposed rule would lead 
to an increase in livestock grazing, oil and gas development, and 
timber harvest, and that these increases would add to problems of 
global warming.
    Response: The Agency agrees the problem of climate change is 
important. The land management planning process is informed by both a 
comprehensive evaluation and the best available science to evaluate the 
situation of the individual forest unit with respect to climate change. 
The final rule is intended to guide how plans are developed, revised, 
and amended. It does not provide direction that is more appropriately 
addressed in the plans themselves, or in the subsequent decisions about 
projects and activities on a particular national forest, grassland, 
prairie, or other comparable administrative unit. These activities 
would be guided by land management plans and subsequent and separate 
decisions made at the project level with appropriate NEPA documents. 
Because it is not possible to estimate these subsequent and separate 
decisions, there is no basis to conclude that the rule will lead to 
increases or decreases in grazing, oil and gas, timber harvest, or 
global warming.
    Comment: Timeline for developing the rule. Several respondents said 
the Agency rushed the rulemaking and EIS

[[Page 21477]]

process. Others requested a rule be developed for the benefit of all 
citizens and not be unduly influenced by politics and special 
interests. Other respondents expressed support for the proposed rule 
and urged the Forest Service to finalize the rule as soon as possible 
so ongoing plan revisions can be completed.
    Response: The process of developing a new planning rule has been 
ongoing since recommendations for more effective planning were 
documented in the 1989 ``Synthesis of the Critique of Land Management 
Planning.'' The final rule was developed considering recommendations of 
the 1999 Committee of Scientists and public and internal input on the 
2000 and the 2005 rules. Although every effort has been made to 
promptly complete rulemaking tasks, the Agency believes there has been 
ample time for public comment, agency analysis of alternatives, and 
ultimately the selection of this final rule. The final rule was 
developed to ensure efficient and effective land use planning 
procedures and was not unduly influenced by political considerations.
    Comment: Consultation with a committee of scientists. Several 
respondents were concerned there was no consultation with a committee 
of scientists in developing the proposed rule. Some said the 1999 
Committee of Scientists should be reconvened, others said previous 
recommendations of the past Committee should be reviewed.
    Response: The National Forest Management Act (NFMA) does not 
require a committee of scientists for revision of the planning rule. 
Nonetheless, the Department based the final rule on the major 
recommendations from the 1999 Committee of Scientists report. 
Sustainability, public participation, adaptive management, monitoring 
and evaluation, the role of science, and the objection process, all 
concepts in the final rule, were recommendations of that report. The 
Department realizes that scientific knowledge will continue to expand. 
Therefore, the responsible official must take into account the best 
available science when plans are developed, revised, or amended.
    Comment: Compliance with the court decision enjoining the 2005 
rule. Some respondents commented that because the proposed rule is 
identical to the enjoined 2005 rule, it does not comply with the 
Administrative Procedure Act (APA), National Environmental Policy Act 
(NEPA), Endangered Species Act (ESA), and other environmental laws. 
Some respondents disagreed with the reasoning of the district court in 
Citizens for Better Forestry v. USDA and were concerned that 
preparation of an EIS to adopt a planning rule may set precedent that 
in addition to the environmental analysis underlying the development of 
a categorical exclusion, a redundant EIS must be prepared to determine 
the effects of using the categorical exclusion.
    Response: On March 30, 2007, the United States District Court for 
the Northern District of California in Citizens for Better Forestry v. 
USDA, 481 F. Supp 2d 1059 (N.D. Cal. 2007) enjoined the Agency from 
carrying out and using the 2005 rule until the Agency took certain 
additional steps concerning the APA, NEPA, and ESA. The Forest Service 
decided to undertake these processes to expedite much needed plan 
revisions and plan amendments.
    The Department is committed to transparent rulemaking and public 
participation under the APA. In the final 2005 rule, the Department 
changed the provisions for timber management requirements, changed the 
provisions for making changes to the monitoring program, and added 
provisions for environmental management system (EMS). The court found 
that the Forest Service did not provide sufficient notice to the public 
of these changes to the 2005 rule such that the 2005 rule was not the 
logical outgrowth of the 2002 proposed rule. Therefore, the Agency 
provided notice and comment of the 2007 proposed rule (72 FR 48514, 
August 23, 2007) which included the final 2005 rule's provisions for 
timber management, monitoring, and EMS.
    Regarding NEPA, the court found the 2005 rule did not fit the 
Agency's categorical exclusion for servicewide administrative 
procedures. The categorical exclusion for administrative procedures was 
developed with public participation and the use of categorical 
exclusions is a recognized method for NEPA compliance. Under the 
court's order, further environmental analysis under NEPA was required. 
Accordingly, the Agency prepared a draft EIS on the proposed rule and a 
final EIS.
    Finally, the court found the Agency was required to prepare a 
biological assessment or to consult on the impact of the 2005 rule 
under ESA. Based upon an analysis for the 2005 rule, the Agency had 
concluded that adoption of the 2005 rule alone would have no effect on 
listed species or critical habitat. The court, however, found that 
conclusion unlawful absent some type of consultation with the United 
States Fish and Wildlife Service (USFWS) and the National Oceanic and 
Atmospheric Administration (NOAA) Fisheries or a biological assessment. 
Accordingly, the Agency has prepared a biological assessment, which 
concludes that the final rule, in itself, will have no effect on 
threatened, endangered, or proposed species or to designated or 
proposed critical habitat. Since initiating the development of the 
current proposed planning rule, the Forest Service has consulted with 
NOAA Fisheries and USFWS to discuss the programmatic nature of the 
planning rule, to explain the Forest Service's tiered decisionmaking 
framework (regulation, land management plan, and project) and to 
consider the potential of the 2008 planning rule to affect threatened, 
endangered and proposed species, and designated and proposed critical 
habitat. We concluded this consultation by reaching a ``no effect'' 
determination. The Forest Service was aware that USFWS and NOAA 
Fisheries had agreed with the Forest Service's similar ``no effect'' 
determination for the 2000 planning rule. However, the Forest Service 
ultimately concluded that, because our ``no effect'' determination 
fulfilled the consultation requirement, it was not necessary to submit 
this biological assessment to the NOAA Fisheries or USFWS seeking 
agreement with our finding.
    The APA notice and comment opportunity, the EIS, and the 
preparation of the biological assessment fully address the procedural 
defects identified by the district court. The court did not require any 
substantive changes in the 2005 rule.
    Comment: Compliance with the Multiple-Use, Sustained-Yield Act, and 
other laws governing the Forest Service. Some respondents commented on 
whether the proposed rule complies with laws affecting the Agency, 
including the MUSYA, NFMA, NEPA, Federal Land Policy and Management Act 
(FLPMA), Forest and Rangeland Renewable Resource Planning Act (RPA), 
ESA, Telecommunication Act of 1996, and applicable State laws, 
including best management practices, providing environmental safeguards 
and public involvement.
    Response: All alternatives are faithful to compliance with all laws 
governing the Forest Service, including applicable State laws. NFMA 
requires the use of the MUSYA to provide the substantive basis for 
forest planning. As used in the rule, sustainability embodies these 
congressional mandates, including the requirements of FLPMA, RPA, and 
other laws. The interrelated and interdependent elements of 
sustainability are social, economic, and ecological as described in 
section 219.10. The final rule sets the stage for

[[Page 21478]]

a planning process that can be responsive to the desires and needs of 
present and future generations of Americans, for the multiple uses of 
NFS lands. The final rule does not make choices among the multiple 
uses; it describes the processes by which those choices will be made as 
a preliminary step during development of plans. The plans developed 
provide guidance for future projects and activities.
    Moreover, an EIS has been prepared for the rule under the 
requirements of NEPA, and the Forest Service has reached a ``no 
effect'' determination under the ESA after preparing a biological 
assessment. Since initiating the development of the current proposed 
planning rule, the Forest Service has consulted with NOAA Fisheries and 
USFWS to discuss the programmatic nature of the planning rule, to 
explain the Forest Service's tiered decisionmaking framework 
(regulation, land management plan, and project) and to consider the 
potential of the 2008 planning rule to affect threatened, endangered 
and proposed species, and designated and proposed critical habitat. We 
concluded this consultation by reaching a ``no effect'' determination. 
The Forest Service was aware that USFWS and NOAA Fisheries had agreed 
with the Forest Service's similar ``no effect'' determination for the 
2000 planning rule. However, the Forest Service ultimately concluded 
that, because our ``no effect'' determination fulfilled the 
consultation requirement, it was not necessary to submit this 
biological assessment to NOAA Fisheries or USFWS seeking agreement with 
our finding.
    Comment: Placing procedures in directives rather than the rule. 
Some respondents commented the proposed rule does not meet all 
requirements of NFMA, such as provisions for determining timber harvest 
levels, identification of lands not suitable for timber production, use 
of the clearcutting harvest system, and providing for a diversity of 
plant and animal communities based on the suitability and capability of 
the land. They also expressed concerns that carrying out these 
requirements through the Agency's Directives System, rather than the 
plan rule itself, would not meet NFMA's mandatory and enforceable 
requirements, because the requirements would no longer have the force 
and effect of law. Other respondents said NFMA requirements have the 
force and effect of law, and if the Agency does not have mandatory 
requirements in regulations, a responsible official could end up 
violating NFMA and a lawsuit could shut down the national forest and 
perhaps the entire NFS. Respondents noted that directives do not 
require a mandatory public comment and agency response as is required 
through the regulatory process provided in the APA (5 U.S.C. 551); 
therefore, changes could be made to the directives without public 
input.
    Response: The Agency is committed to meeting all the requirements 
of NFMA for all projects. Individual projects must meet NFMA's 
requirements for soil and water protection, restocking, restrictions on 
the use of clearcutting, esthetic quality, and so forth, regardless of 
whether those requirements are set out in regulation or agency 
directives.
    The Agency believes the NFMA requirement that the planning 
regulation ``shall include, but not be limited to * * * specifying 
guidelines for land management plans developed to achieve the goals of 
the Program which'' [provide for diversity, ensure timber harvest will 
only occur if certain conditions are met, etc.] affords the Agency 
discretion to provide policy guidance either through regulations or 
directives (16 U.S.C. 1604(g)). Directives are available at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fs.fed.us/im/directives.
    In keeping with the strategic and adaptive nature of planning, the 
Agency is striving to make rulemaking more strategic and adaptive. 
Therefore, many procedural and technical details have been moved to the 
Forest Service Directive System (Forest Service directives). Forest 
Service directives are the primary basis for the Forest Service's 
internal management of all its programs and the primary source of 
administrative direction to Forest Service employees. The FSM contains 
legal authorities, objectives, policies, responsibilities, 
instructions, and guidance needed, on a continuing basis, by Forest 
Service line officers and primary staff to plan and execute programs 
and activities. The FSH is the principal source of specialized guidance 
and instruction for carrying out the policies, objectives, and 
responsibilities in the FSM.
    Furthermore, the Agency requires that Federal, State, and local 
governments and the public have adequate notice and opportunity to 
comment on the formulation of standards, criteria, and guidelines 
applicable to land management planning when substantial public interest 
or controversy concerning a directive can be expected. For example, in 
the March 23, 2005, Federal Register (70 FR 14637), the Agency gave 
notice and requested public comment concerning issuance of interim 
directives related to carrying out the 2005 rule. The issuance of the 
final directives and response to comments received was published on 
January 31, 2006 (71 FR 5124).
    A similar process will be done for directives carrying out the 
final planning rule. The directives for land management planning are 
composed of two manual chapters and nine handbook chapters. Manual 
chapters FSM 1900--Planning--Chapter Zero Code, and FSM Chapter 1920--
Land Management Planning. FSM 1900 will need to be amended to update a 
few definitions. FSM 1920 will need updating to reflect the final rule 
for timber management requirements. FSH 1909.12 is composed of ten 
chapters as follows: Chapter--Zero Code, Chapter 10--Land Management 
Plan, Chapter 20--The Adaptive Planning Process, Chapter 30--Public 
Participation and Collaboration, Chapter 40--Science and 
Sustainability, Chapter 50--Objection Process, Chapter 60--Forest 
Vegetation Resource Planning, Chapter 70--Wilderness Evaluation, 
Chapter 80--Wild and Scenic River Evaluation, and Chapter 90--
References. Chapters 10, 20, 60, and 90 will need updating to reflect 
the final rule. The changes to the final rule do not directly affect 
chapters Zero Code, 30, 40, 50, 70, and 80 of the handbook. However, 
the Agency has received comments on the existing directives and will 
take a comprehensive look at these directives to see if improvements 
can be made.
    Although directives have been held not subject to judicial 
enforcement, (Western Radio Services Co., inc. v. Espy, 79 F 3d 896 
(9th Cir. 1996)), they are enforced in the Forest Service. The Agency 
has a variety of methods for determining whether policy is being put 
into practice. First, the public involvement process allows for direct 
input into the planning process and management decisions on-the-ground. 
This local collaboration serves as an important check on agency 
practices. Second, the Agency has administrative appeals and objections 
processes through which the public can raise concerns about projects 
and land management plans. Third, the Forest Service conducts regular 
management reviews designed to assess to what degree the Agency is 
complying with rules and policies.
    The Department also understands and respects the view expressed in 
a number of public comments that if certain requirements are in the 
rule, they are afforded greater visibility. In response to these 
comments, the Department has included the NFMA timber management 
requirements (16 U.S.C. 1604(g)) and detailed requirements for 
identifying

[[Page 21479]]

lands not suited for timber production (16 U.S.C. 1604(k)) in the final 
rule.
    Comment: Compliance with the ESA. Some respondents raised concerns 
the proposed rule, without a strong viability or ecological 
sustainability requirement, does not ensure protection of federally-
listed threatened or endangered species (such as the Canada lynx), will 
not help with their recovery, and will not forestall the listing of 
other species. Some stated that if the needs of these species are not 
met through a meaningful NFMA process, they will have to be met through 
an ESA process, thereby requiring greater application of the ESA to 
future project operations.
    Response: The final rule is intended to provide a framework to 
contribute to sustaining native ecological systems by providing 
appropriate ecological conditions to support diversity of native plant 
and animal species in the plan area. Plan components establish a 
framework to provide the characteristics of ecosystem diversity in the 
plan area. Plans are to include provisions in plan components that the 
responsible official determines are needed to provide appropriate 
ecological conditions or protective measures for specified threatened 
and endangered species, consistent with limits of agency authorities, 
the capability of the plan area, and multiple-use objectives 
(219.10(b)(2)).
    Under the ESA, the Agency has responsibilities to insure its 
actions do not jeopardize the continued existence of threatened and 
endangered species, or destroy or adversely modify habitat designated 
as critical habitat for such species. This is done where applicable 
when the Forest Service is proposing to take a particular action, 
through the use of ESA section 7(a)(2) consultation with the USFWS and 
NOAA Fisheries on potential effects of agency proposals to such species 
and to designated critical habitat. The Agency also coordinates with 
the USFWS and NOAA Fisheries under ESA section 7(a)(1) to carry out 
programs and activities for the conservation of endangered and 
threatened species and the ecosystems on which they depend.
    Comment: Consistency with the intent of Congress as expressed in 
the Appeals Reform Act (ARA). One respondent asserted that the use of a 
predecisional objection process for plans rather than a post-decisional 
appeal process runs counter to the intent of Congress when they passed 
the Appeals Reform Act (ARA). This respondent believes that, although 
the ARA addresses only project-level appeals, Congress intended to 
leave unaffected the forest plan appeal process that was then in place.
    Response: There is nothing in the Appeals Reform Act or its 
legislative history that would indicate Congress had any intent of 
addressing appeals processes other than those for ``proposed actions of 
the Forest Service concerning projects and activities implementing land 
and resource management plans.'' On the other hand, NFMA only requires 
``public participation in the development, review, and revision of land 
management plans'' without specifying any post-decision review (16 
U.S.C. 1604(d)). The Department believes the proposed predecisional 
objection process provides an opportunity for public concerns to be 
reviewed at a higher administrative level using a process that is more 
collaborative and less confrontational. The predecisional objection 
process provides an opportunity to make needed or appropriate 
adjustments to a plan before it is approved. The Agency's experience 
with post-plan decision appeals is that it is difficult to make needed 
changes. Often a separate amendment process must be carried out to 
respond to an appeal.
    Comment: Integration of Minerals Management. Some respondents 
raised concerns the proposed rule does not ensure integration of 
mineral and energy resource development with the management of 
renewable resources. They believe without specific procedures for 
integration, the Agency will not meet its obligations under the Mining 
and Minerals Policy Act, Forest Service Minerals Program Policy, and 
the Forest Service Energy Implementation Plan.
    Response: Increased production and transmission of energy and 
mineral resources in a safe and environmentally sound way is essential 
to the well-being of the American people. Like other agencies, the 
Forest Service is charged to take appropriate actions, to the extent 
consistent with applicable law, to expedite projects that will increase 
the production, transmission, or conservation of energy and mineral 
resources. In most instances, the Agency meets this responsibility by 
assuring that mineral activities on NFS lands are conducted in a way 
that minimizes environmental impacts on the renewable surface resources 
as directed by the MUSYA, NFMA, and various other statutes. Management 
responsibility for non-renewable, subsurface mineral resources 
primarily rests with the Secretary of the Interior. Where applicable, 
plan components will be developed considering the various conditions 
and uses of each individual unit, including the mineral and energy 
resource and opportunities for development of that resource. Forest 
planning is one, but certainly not the only, means to integrate the 
exploration and development of mineral and energy resources with the 
use and protection of the various goods and services provided from the 
NFS.
    Comment: Legal requirements. Several respondents commented that 
various laws have made changes to some legal requirements, which must 
be addressed in the rule. For example, the Alaska Native Interest Lands 
Conservation Act requirement under section 1326(b) that ``no further 
studies of Federal lands in the State of Alaska for the single purpose 
of considering the establishment of a conservation system unit, 
national recreation area, or for related or similar purposes shall be 
conducted unless authorized by this Act or by further Act of 
Congress.''
    Response: Wording at section 219.7(a)(6)(ii) in the final rule 
accounts for such situations by stating that wilderness recommendations 
must be considered ``unless otherwise prohibited by law.'' Although 
this provision of the final rule discusses only wilderness 
recommendations, no planning actions will be taken if in conflict with 
Federal law.
    Comment: Court oversight. Some respondents commented the proposed 
rule makes it more difficult to challenge agency decisions in court.
    Response: With respect to concerns that Forest Service discretion 
may be unchecked, there has always been a tension between providing 
needed detailed direction in the planning rule and providing discretion 
for the responsible official. However, the decisions of the responsible 
official are constrained and guided by a large body of law, regulation, 
and policy, as well as public participation and oversight. Because 
every issue cannot be identified and dealt with in advance for every 
situation, the Forest Service must rely on the judgment of the 
responsible official to make decisions based on laws, regulation, 
policy, sound science, public participation, and oversight.
    The Agency believes the final rule is fully compatible with the 
nature of forest planning as described by the U.S. Supreme Court in 
Ohio Forestry v. Sierra Club 523 U.S. 726 (1998) (Ohio Forestry). The 
Agency expects public oversight and legal review of planning, as well 
as an assessment of the environmental impacts of specific projects 
under NEPA, to occur under the final rule in accord with Ohio Forestry. 
As a general matter, and consistent with the Ohio Forestry decision, a 
plan by itself is not expected to be reviewable by

[[Page 21480]]

the courts at the time the plan is developed, revised, or amended. The 
Department does not believe this rule makes judicial review any harder 
to obtain than was the case in Ohio Forestry. When the Agency decides 
on a specific action, an aggrieved party will be able to challenge that 
action and, if appropriate, seek review of that part of the plan 
relevant to that action.

Comments in Response to Specific Sections

    The following is a section-by-section discussion of comments 
received on specific sections of the proposed rule, the Agency's 
response, and a discussion on the differences between the 2007 proposed 
rule and the final rule and why the Department made the changes. The 
Agency ordered the rule sections from general to specific. The first 
section introduces the reader to what is covered in the final rule and 
acknowledges the Forest Service's multiple-use and sustained-yield 
mandate (remainder of sec. 219.1). Section 219.2 describes planning in 
general and the levels of planning in the Agency. Then, the final rule 
contains a general description of plans (sec. 219.3 and 219.4), a 
discussion of environmental management systems (sec. 219.5), followed 
by the specific plan requirements (sec. 219.6-219.16). Throughout the 
final rule minor edits have been made for clarity.

Section 219.1--Purpose and Applicability

    This section introduces the reader to what is covered in the final 
rule, acknowledges the Forest Service's multiple-use and sustained-
yield mandate, and directs the Chief of the Forest Service to establish 
planning procedures in the Forest Service directives. The Department 
retains the 2007 proposed rule wording in the final rule, with the 
minor change of replacing ``required components'' with ``plan 
components'' to be consistent with section 219.7.
    Comment: Meaningful, definitive plans. Several respondents urged 
that regulations provide for meaningful plans that give the American 
people a good idea of how lands will be managed. These respondents 
stated plans should not be vague, but rather be a contract with the 
public about how lands and resources will be managed. To be definitive 
in this regard, the plans must have standards that require or prohibit 
certain activities, standards and guidelines for management areas, 
other items required by NFMA, and supported by an EIS. One respondent 
commended the intent of defining measurable objectives toward desired 
conditions along with a structure for monitoring and evaluation.
    Response: The Department believes plans are more effective if they 
include more detailed descriptions of desired conditions, rather than 
long lists of prohibitive standards or guidelines developed in an 
attempt to anticipate and address every possible future project or 
activity and the potential effects such projects could cause. For 
example, standards could have been included that precluded vegetation 
treatment during certain months or for a buffer for activities near the 
nest sites of birds sensitive to disturbance during nesting. However, 
topography, vegetation density, or other factors may render such 
prohibitions inadequate or unduly restrictive in specific situations. A 
thorough desired condition description of what a species needs is often 
more useful than a long list of prohibitions.
    In reviewing public comments, the Department concluded that the 
argument for excluding standards from a planning rule so as not to 
limit a responsible official's discretion cuts both ways. Just as 
standards and prohibitions in a planning rule limit a responsible 
official's discretion, not allowing them also limits a responsible 
official's discretion in developing, revising, and amending a land 
management plan. Recognizing the ecological, economic, and social 
diversity across the NFS, there might be circumstances where certain 
standards or prohibitions would be appropriately included in a land 
management plan. Accordingly, the final rule explicitly allows a 
responsible official the flexibility to include standards and 
prohibitions in a land management plan.
    Comment: Desired conditions, modeling parameters, information gaps. 
Some respondents asked that the final rule identify parameters that 
would guide the development of vegetation simulation models; clarify 
how desired conditions guide a project level EIS or EA, and how 
information gaps would be rectified when existing science is lacking.
    Response: As with many other procedures, those that would guide the 
development of vegetation simulation models are properly discussed in 
technical guides rather than the planning rule. This allows selected 
models to change as technology evolves. The final rule defines a 
consistent approach to analysis and evaluation at broad scales and the 
local level. The final rule at section 219.6(a) would require the 
responsible official to keep the plan set of documents up to date with 
evaluation reports to show changing conditions, science, and other 
relevant information.
    Desired conditions under the final rule are the social, economic, 
and ecological attributes toward which land management under the plan 
will aspire. A plan's desired conditions will contribute to the purpose 
and need for action articulated in a project EA or EIS. Responsible 
officials propose to carry out various projects and activities designed 
to meet a particular purpose and need for action, which should move 
toward or maintain desired conditions and achieve objectives described 
in the plan. The comprehensive evaluation report under the final rule 
may describe the risks and uncertainties associated with carrying out 
management consistent with the plan. At the project stage, where gaps 
in information are apparent, the Council on Environmental Quality 
Regulations for Implementing the Procedural Provisions of the NEPA at 
40 CFR 1502.22 (incomplete or unavailable information) would be 
followed, and the Agency would acknowledge when information is lacking 
or either obtain it or

the agency shall include within the environmental impact statement: 
(1) A statement that such information is incomplete or unavailable; 
(2) a statement of the relevance of the incomplete or unavailable 
information to evaluating reasonably foreseeable significant adverse 
impacts on the human environment; (3) a summary of existing credible 
scientific evidence which is relevant to evaluating the reasonably 
foreseeable significant adverse impacts on the human environment, 
and (4) the agency's evaluation of such impacts based upon 
theoretical approaches or research methods generally accepted in the 
scientific community. For the purposes of this section, ``reasonably 
foreseeable'' includes impacts which have catastrophic consequences, 
even if their probability of occurrence is low, provided that the 
analysis of the impacts is supported by credible scientific 
evidence, is not based on pure conjecture, and is within the rule of 
reason (40 CFR 1502.22).

    Managers prioritize risks and develop strategies to control them. 
These strategies may include specific monitoring and evaluation to 
gather additional information.

Section 219.2--Levels of Planning and Planning Authority

    This section describes planning in general, how planning occurs at 
many organizational levels and geographic areas in the Agency, and 
provides the basic authorities and direction for developing, amending, 
or revising a plan. The Department retains the 2007 proposed rule 
wording in the final rule.

[[Page 21481]]

    Comment: Addressing statewide issues. One respondent discussed past 
difficulty resolving statewide issues under the 2005 rule, and 
expressed concern the proposed rule will have the same problems. 
Another respondent commented that some planning issues are best 
answered at the regional level.
    Response: The final rule has provisions for plan development and or 
revision to occur at a multiple forest level (sec. 219.2(b)(2)). Under 
the 1982 rule, responsible officials have routinely coordinated 
planning across unit and regional boundaries and will continue to do so 
as plans are developed under the final rule. In addition, the final 
rule provides the option for higher-level officials to act as the 
responsible official for a plan, plan amendment, or plan revision 
across a number of plan areas when needed.
    Comment: Levels of authority. Some respondents were concerned the 
further up the authority ladder a decision is made, the further it is 
removed from the local level, and there is excessive discretion and 
lack of accountability in the rule, including unrestricted license to 
amend plans through project decision-making in violation of the NFMA.
    Response: In compliance with NFMA, the final rule establishes a 
planning rule as a broad framework where issues specific to a plan area 
can be identified and resolved in an efficient and reasonable way, 
where responsible officials and the public can be informed by the 
latest data and scientific assessments, and where the public 
participates collaboratively. Like the 2000 rule, the responsible 
official will typically be the forest supervisor under the final rule; 
not the regional forester as under the 1982 rule.
    Regardless of the administrative level, the responsible official 
must develop, amend, or revise plans within the framework set out by 
the planning rule and is accountable for compliance with the planning 
rule and the multitude of relevant laws and policies. About project 
decisionmaking, the NFMA allows plans to ``be amended in any manner 
whatsoever after final adoption after public notice'' (16 U.S.C. 
1604(f)(4)). Furthermore, the Agency has been doing project amendments 
under the 1982 rule since the 1980s.
    Comment: Inconsistency between responsible officials. Several 
respondents said the proposed rule would guarantee inconsistent 
application across the Agency because it leaves virtually all 
definitional and methodological decisions to the responsible official. 
Moreover, several respondents said that the Agency needs to put an end 
to inconsistency that occurs between responsible officials.
    Response: Responsible officials currently coordinate across unit 
boundaries and would continue to do so because the areas of analysis 
for evaluations described in sections 219.6, 219.7, and 219.10 would 
often extend beyond the unit's boundaries to adjacent or nearby NFS 
units. In addition, the final rule provides the option for higher-level 
officials to act as the responsible official for a plan, plan 
amendment, or plan revision across a number of plan areas when 
consistency is needed. The Forest Service already has directives which 
ensure consistency as needed for Tribal or public consultation or for 
social, economic, or ecological resource related issues. The final rule 
supplies discretion for the responsible official because the Agency 
believes that the responsible official is the person most familiar with 
the resources and the people on the unit and is usually the most 
appropriate person to make decisions affecting those lands.

Section 219.3--Nature of Planning and Land Management Plans

    This section describes the nature of planning, and the force and 
effect of plans. The Department retains the 2007 proposed rule wording 
in the final rule.
    Comment: Strategic nature of planning. Many respondents were 
concerned about the strategic nature of plans. Some respondents were 
concerned that if strategic plans do not create legal rights, then 
there is no need for projects to be consistent with the plan; a 
circumstance that would violate NFMA. Other respondents said that if 
plans do not control on-the-ground activities and are only 
``aspirational,'' the plans become meaningless paper exercises. On the 
other hand, some respondents were concerned that plans were too 
restrictive because forest staff would refuse to consider activities 
not consistent with management zones designated in the plan. Some 
respondents disagreed that plans do not usually include final decisions 
approving projects. They cited decisions made in the recently issued 
plan revisions in the Forest Service's Southern region. Other 
respondents agree plans are strategic and are not actions that 
significantly impact the human environment and, therefore, that the 
preparation of an EIS is not required. Others stated that plans should 
focus on goals rather that specific prescriptions or prohibitions.
    Response: The NFMA (16 U.S.C. 1604(i)) requires that resource 
plans, permits, contracts, and other instruments for the use and 
occupancy of NFS lands be consistent with land management plans. The 
final rule's approach to the project consistency requirement is 
consistent with the Supreme Court's observation of the characterization 
of plans in Norton v. Southern Utah Wilderness Alliance, 124 S. Ct. 
2373 (2004), that ``land use plans are a preliminary step in the 
overall process of managing public lands --`designed to guide and 
control future management actions and the development of subsequent, 
more detailed and limited scope plans for resources and uses.' ''
    An ``aspirational'' plan establishes a long-term management 
framework for NFS units. A framework is not a meaningless paper 
exercise. Within the framework, specific projects and activities are 
proposed, approved, and carried out depending on specific conditions 
and circumstances at the time of accomplishment. The final rule is 
consistent with the Supreme Court's description of plan decisions and 
the nature of plans in Ohio Forestry v. Sierra Club (523 U.S. 726, 737 
(1998)). This ruling explains that plans are ``tools for agency 
planning and management.'' The court recognized that the provisions of 
such plans ``do not command anyone to do anything or to refrain from 
doing anything; they do not grant, withhold, or modify any formal legal 
license, power, or authority; they do not subject anyone to any civil 
or criminal liability: they create no legal rights or obligations.''
    The use of a framework for identifying suitable uses has evolved. 
Determining suitable uses was often characterized in plans prepared 
under the 1982 rule as permanent restrictions on uses or permanent 
determinations as to which uses would be suitable in particular areas 
of the unit over the life of the plan. However, even under the 1982 
rule, Forest Service staff realized these identifications were never 
permanent, unless they were a statutory designation by Congress. 
Section 219.8 of the final rule lists actions that must be taken if an 
existing or proposed project or activity is found to be inconsistent 
with the applicable plan.
    Recent plan revisions for NFS's Southern region did include project 
and activity decisions, but those revisions were done under the 1982 
rule. Project and activity decisions can be in a plan but would likely 
be rare exceptions under the strategic approach used for the final 
rule.

Section 219.4--National Environmental Policy Act Compliance

    This section of the final rule describes how planning will comply 
with NEPA.

[[Page 21482]]

The Department retains the 2007 proposed rule wording in the final rule 
except for a change to paragraph (b). Within paragraph (b), the 
Department removed the wording about categorical exclusion so that it 
now says approval of a plan, plan amendment, or plan revision, under 
the authority of this subpart, will be done in accord with the Forest 
Service NEPA procedures. As categorical exclusions are part of those 
procedures, this is not a substantive change.
    Comment: Plans as major Federal actions. Although some respondents 
supported categorically excluding land management plans from 
documentation in an EIS or EA, other respondents believed land 
management plans significantly affect the environment and are 
therefore, major Federal actions triggering the NEPA requirements for 
an EIS (40 CFR 1508.18). Some stated NEPA requirements for an EIS are 
triggered because land management plans are in the category of Federal 
actions that are described as ``formal plans'' in the Council on 
Environmental Quality (CEQ) regulations at 40 CFR 1508.18 (b)(2). Some 
respondents expressed the view that by determining the types of land 
uses that will occur in areas of a national forest, the Forest Service 
makes decisions in its land management plans that ultimately can result 
in significant effects even though the plans themselves may not approve 
specific projects or activities. Other respondents believed 
extraordinary circumstances in the plan area would always preclude the 
use of a categorical exclusion.
    Response: CEQ regulations define ``major Federal action'' as 
including ``actions with effects that may be major'' and state, ``major 
reinforces but does not have a meaning independent of significantly'' 
(40 CFR 1508.18). The CEQ regulations state that Federal actions fall 
within several categories, one of which is the ``[a]doption of formal 
plans, such as official documents prepared or approved by Federal 
agencies which guide or prescribe alternative uses of Federal 
resources'' (40 CFR 1508.18). However, not all Federal actions are 
major Federal actions significantly affecting the quality of the human 
environment. Plans developed under the final rule would typically not 
approve projects and activities, or command anyone to refrain from 
undertaking projects and activities, or grant, withhold, or modify 
contracts, permits, or other formal legal instruments. Such plans have 
no independent environmental effects. Plan components would guide the 
design of projects and activities in the plan area. The environmental 
effects of proposed projects and activities will be analyzed under NEPA 
once they are proposed. Furthermore, the final rule does not preclude 
preparation of an EA or EIS for a land management plan where 
appropriate to the decisions being made in a plan approval.
    The Forest Service conducted an analysis for categorically 
excluding land management plan decisions and published a proposed 
category for public comment in 2005 (70 FR 1062). The Agency's final 
category was published in the Federal Register on December 15, 2006 (71 
FR 75481). The land management planning categorical exclusion states 
that a decision approving projects and activities, or that would 
command anyone to refrain from undertaking projects and activities, or 
that would grant, withhold, or modify contracts, permits, or other 
formal legal instruments are outside the scope of this category. 
Proposals outside the scope of the categorical exclusion must be 
documented in an EA or EIS. Accordingly, land management plans, 
depending on their content, can be subject to various levels of NEPA 
documentation.
    The Department acknowledges that extraordinary circumstances can 
preclude the use of a categorical exclusion, but believes that, absent 
plan decisions with on-the-ground effects, extraordinary circumstances 
are not likely.
    Forest Service NEPA procedures provide that a responsible official, 
when considering whether to rely upon a categorical exclusion must 
determine whether there are extraordinary circumstances, which would 
preclude the use of a categorical exclusion. The procedures describe 
resource conditions to be considered when determining whether there are 
extraordinary circumstances. The procedures make clear that ``The mere 
presence of one or more of these resource conditions does not preclude 
use of a categorical exclusion. It is (1) the existence of a cause-
effect relationship between a proposed action and the potential effect 
on these resource conditions and (2) if such a relationship exists, the 
degree of the potential effect of a proposed action on these resource 
conditions that determines whether extraordinary circumstances exist.'' 
Although the responsible official must consider whether there are 
extraordinary circumstances precluding use of a categorical exclusion 
for a plan, the Department expects that typically the nature of the 
plan will be such that its potential effects on the resource conditions 
will not involve extraordinary circumstances.
    Comment: Desired conditions as a final agency decision. Some 
respondents believe that the establishment in plans of desired 
conditions and general suitability determinations (sec. 
219.7(a)(2)(iv)) for management areas are final agency actions that 
will preclude certain uses from occurring. They also note the preamble 
for the 2005 rule (70 FR 1031) admits the approval of a forest plan is 
a final agency decision.
    Response: The Department agrees that the approval of a plan, plan 
amendment, or plan revision is a final agency action under CEQ 
regulations, and that such actions may have environmental effects in 
some extraordinary circumstances, such as when a plan amendment or 
revision includes final decision approving projects or activities.
    As discussed at section 219.12 of the final rule, NFS lands are 
generally suitable for a variety of multiple uses, such as outdoor 
recreation, range, timber, watershed, and wildlife and fish purposes, 
and a plan could designate the same area as suitable for multiple uses 
which when any one is authorized, precludes other uses. Such 
identification is guidance for project and activity decisionmaking, is 
not a permanent land designation, and is subject to change through plan 
amendment or plan revision. Specific uses of specific areas are 
approved through project and activity decisionmaking. At the time of 
plan approval, the Forest Service does not typically have detailed 
information about what projects and activities will be proposed and 
approved over the life of the a plan, where they will be located, or 
how they will be designed. Under the final rule, plans will be 
strategic rather than prescriptive in nature, absent rare 
circumstances. Plans would describe the desired social, economic, and 
ecological conditions for a national forest, grassland, prairie, or 
other comparable administrative unit. Plan objectives, guidelines, 
suitable uses, and special area identifications would be designed to 
help achieve the desired conditions. None of the plan components are 
intended to directly dictate an on-the-ground decision that has impacts 
on the environment. Rather, they state guidance and goals to be 
considered in project and activity decisions.
    Comment: Desired condition and suitability determinations as 
irretrievable and irreversible decisions: A respondent commented that 
plans make irretrievable and irreversible decisions because desired 
future

[[Page 21483]]

conditions require certain management and identifying a timber base 
assures that certain actions will occur and impacts will result. 
Another respondent commented that the zoning of certain forest lands in 
the plan has a direct impact on how national forests will be managed 
and what impacts will be acceptable.
    Response: The identification of desired conditions in a plan will 
not require any activities to actually occur or describe the precise 
activities to be undertaken to bring a forest or grassland to those 
conditions. Although a statement of desired conditions will typically 
influence the choice and design of future proposed projects and 
activities in the plan area it does not by itself have any effects on 
the environment. Likewise identifying a particular area as suitable for 
timber production does not require or approve any projects or 
activities, command anyone to refrain from undertaking projects and 
activities, or grant, withhold, or modify contracts, permits, or other 
formal legal instruments. Nor does it mean that a particular set of 
management prescriptions will be the only set considered when future 
projects are proposed in that area.
    Comment: Standards and guidelines as final agency decisions: A 
respondent stated that standards and guidelines ensure that protective 
or impacting activities will occur.
    Response: Standards and guidelines provide constraints, 
information, and guidance that will be applied to future proposed 
projects or activities to contribute to achieving or maintaining 
desired conditions. Standards and guidelines may even determine whether 
a potential project is feasible. Furthermore, standards and guidelines 
will typically influence the design of proposals for future projects 
and activities in the plan area. The influence standards and guidelines 
have on the direct, indirect, and cumulative effects of future projects 
or activities are not known and cannot be meaningfully analyzed until 
such projects or activities are proposed by the Agency. If a plan 
standard or guideline were to approve projects and activities, or 
command anyone to refrain from undertaking projects and activities, or 
grant, withhold, or modify contracts, permits, or other formal legal 
instruments, such a plan component would be subject to appropriate NEPA 
analysis and documentation.
    Comment: Roadless inventory, wilderness or wild and scenic rivers 
recommendations, and oil and gas leasing as final agency decisions. 
Some respondents did not agree that plans do not typically make final 
decisions subject to NEPA, citing the determination of roadless areas, 
recommendations for wilderness or wild and scenic rivers, and the 
decisions to open areas to oil and gas leasing. Other respondents agree 
with the Forest Service that plans do not approve or execute any 
particular action; that management is more dynamic when it is closest 
to the ground.
    Response: The planning process includes inventories and analysis 
that provide information but this information is not a decision. 
Inventories identifying areas meeting certain criteria for potential 
wilderness areas are an example. Only the Congress can make the 
decision to designate wilderness or wild and scenic rivers. Unless 
otherwise provided by law, based on inventories and analysis, the 
responsible official will consider all NFS lands possessing wilderness 
characteristics for recommendation as potential wilderness areas during 
plan development or revision. Congress may consider recommendations in 
the plan, but has no obligation to designate wilderness consistent with 
the plan's recommendations. The final rule ensures that NEPA analysis 
would coincide with those stages in agency planning and decisionmaking 
likely to have a measurable effect on the human environment. If the 
Chief decides to forward preliminary recommendations of the forest 
supervisor to the Secretary, an applicable NEPA document shall 
accompany these recommendations.
    If the responsible official proposes to determine what oil and gas 
lands are administratively available for oil and gas under 36 CFR 
228.102(d), this would be a separate decision, which the plan may 
cross-reference. However, this is an activity decision under 36 CFR 
228.102(d), this is not a plan decision or plan component.
    Comment: Disclosure of the environmental effects of a plan. Many 
respondents were concerned that using a categorical exclusion instead 
of an EIS for land management planning eliminates disclosure of 
environmental effects of a land management plan. Some were concerned 
that without disclosure of environmental effects, scientists and the 
public would not have a basis for providing meaningful comments. Some 
respondents believed the proposed categorical exclusion would eliminate 
cumulative effects analysis of management activities across the NFS in 
violation of NEPA.
    Response: A categorical exclusion is one method of complying with 
NEPA. A categorical exclusion represents a Forest Service determination 
that the actions encompassed by the category ``do not individually or 
cumulatively have a significant effect on the human environment'' (40 
CFR 1508.4). Plans developed under the final rule would typically not 
include a decision approving projects and activities, nor that command 
anyone to refrain from undertaking projects and activities, nor that 
grant, withhold or modify contracts, permits, or other formal legal 
instruments. Plan components would provide guidance and a strategic 
framework-they would not compel changes to the existing environment. 
Achieving desired conditions depends on future management decisions. 
Thus, without a decision approving projects and activities, or that 
commands anyone to refrain from undertaking projects and activities, or 
that grants, withholds or modifies contracts, permits, or other formal 
legal instruments, the plan components would not be linked in a cause-
effect relationship over time and within the geographic area to any 
resource. Therefore, such a plan would not have a significant effect on 
the quality of the human environment.
    The final rule would provide for extensive analysis, as set out in 
section 219.6 and section 219.7. A comprehensive evaluation of current 
conditions and trends would be done for plan development and revision 
and updated at least every 5 years (sec. 219.6(a)(1)). This evaluation, 
along with information from annual evaluations and other sources, would 
be part of the continually updated plan documents or set of documents 
that would be considered in project analysis. These up-to-date plan 
documents or set of documents would provide a better context for 
project cumulative effects disclosures than previously provided by 
programmatic plan EISs under the 1982 rule; therefore, the Forest 
Service would make better informed management decisions at the time it 
decides to propose projects under the plan. However, the comprehensive 
evaluation report will not have a cumulative effects disclosure like 
the EISs under the 1982 rule had.
    The Forest Service is required to address the cumulative effects of 
projects and activities. Those cumulative effects will be analyzed and 
disclosed at the time the projects and activities are proposed, which 
is the time when the Forest Service has a goal, is actively preparing 
to make a decision about one or more alternatives to achieve that goal, 
and the effects can be meaningfully evaluated (40 CFR 1508.23).
    Comment: Plan alternatives. Several respondents commented that by 
not

[[Page 21484]]

using an EIS for land management planning, no alternatives will be 
considered other than the one proposed by the Forest Service. They were 
concerned this would preclude the consideration of alternatives 
proposed by the public. Some suggested that alternatives play an 
important role in educating the public about the possible outcomes for 
national forests and grasslands. Others believed evaluating 
alternatives allows Forest Service managers to make decisions that are 
more informed.
    Response: With the 1982 rule, the Forest Service believed the most 
efficient planning approach was to integrate the rule's regulatory 
requirement to formulate alternatives to maximize net public benefit 
with the NEPA alternative requirement (i.e., 40 CFR 1502.14). However, 
the final rule would not require alternatives because it envisions an 
iterative approach to plan development, in a way that plan options are 
developed and narrowed successively (sec. 219.7(a)(7)). The Department 
recognizes that people have many different ideas about how NFS lands 
should be managed and agrees that the public should be involved in 
determining what the plan components should provide. Therefore, the 
final rule provides for participation and collaboration with the public 
at all stages of plan development, plan amendment, or plan revision. 
Under the final rule, the responsible official and the public may 
iteratively develop and review various options for plan components, 
including options offered by the public. Responsible officials and the 
public would work collaboratively to narrow the options for a proposed 
plan instead of focusing on distinct alternatives that would be carried 
through the entire process. The Forest Service developed this iterative 
option approach under the final rule to encourage people to work 
together, to understand each other's values and interests, and to find 
common solutions to the important and critical planning issues.
    Comment: Efficiency of future project and activity decisionmaking. 
Some respondents believed categorically excluding land management plans 
will increase the analysis needed for project or activity decisions and 
therefore, reduce efficiency gained during the planning process. Some 
stated that without a plan EIS, cumulative effects and impacts to 
forest-wide resources would now have to be evaluated in each project 
decision.
    Response: Inherent in these comments is the assumption that 
programmatic land management plan EISs consistently provided useful and 
up-to-date information for project or activity analysis including 
sufficient cumulative effects analysis for reasonably foreseeable 
projects and activities. After 28 years of NFMA planning experience, 
the Forest Service has determined that plan EIS cumulative and 
landscape-level effects analyses are mostly speculative and quickly out 
of date. Landscape conditions, social values, and budgets change 
between when a plan's effects analysis occurs and when most project and 
activity decisions are made. Large-scale disturbances, such as drought, 
insects and disease, fires, and hurricanes can dramatically and 
unexpectedly change conditions on hundreds to thousands of acres. Use 
of a plan area can change dramatically in a relatively short time, as 
has occurred with the increased numbers of off-highway vehicles in some 
areas or the listing of a species under the ESA. Hence, the Forest 
Service has found that a plan EIS typically does not provide useful, 
current information about potential direct, indirect, and cumulative 
impacts of project or activity proposals. Such effects will be better 
analyzed and disclosed when the Forest Service knows the proposal's 
design and the environmental conditions of the specific location.

Section 219.5--Environmental Management Systems

    This section of the final rule describes environmental management 
systems (EMS) provisions. The EMS provisions will enhance the Agency's 
ability to monitor and adaptively respond to changes in the 
environmental aspects in its land management activities. The Department 
modified the wording of the proposed rule to (1) permit the Agency to 
establish a multi-unit, regional, or national level EMS; (2) clarify 
that the scope of an EMS will include land management environmental 
aspects as determined by the responsible official; and (3) add a 
requirement that no project or activity approved under a plan 
developed, amended, or revised may be implemented until the responsible 
official has established an EMS.
    The Department decided to allow the responsible official to conform 
to a multi-unit, regional, or national level EMS because this 
modification will provide the Forest Service flexibility to determine 
the appropriate scope of an EMS and allow the Agency to set EMS 
procedures at the appropriate organizational level to improve 
environmental efficiency and effectiveness. The responsible official 
will have the responsibility to deal with local concerns in the EMS. 
The unit EMS will provide the opportunity either to conclude that the 
higher level EMS adequately considers and addresses locally identified 
scope and significant environmental aspects, or to address project-
specific impacts associated with the significant environmental aspects. 
The complete details for how the Agency will do this are being 
developed in a national technical guide and the Forest Service 
directives.
    The Department changed the scope of an EMS so that the responsible 
official is the person authorized to identify and establish the scope 
and environmental aspects of the EMS, based on the national EMS and ISO 
14001, with consideration of the unit's capability, needs, and 
suitability. The detailed procedures to establish scope and 
environmental aspects are being developed in a national technical guide 
and the Forest Service Directives System which are planned for release 
in fiscal year 2008. The Department made this change because the 
wording about scope in the proposed rule was too broad to be 
effectively implemented.
    The Department is requiring the Chief to establish direction for 
EMS in the Forest Service directives. The directives will formally 
establish national guidance, instructions, objectives, policies, and 
responsibilities leading to conformance with International Organization 
for Standardization (ISO) and adopted by the American National 
Standards Institute (ANSI) as ``ISO 14001:2004(E) Environmental 
Management Systems--Requirements with Guidance for Use.''
    The Department decided to remove the requirement that an EMS be in 
place prior to developing or revising a plan. However, the Department 
added the requirement that no project or activity approved under a plan 
developed, amended, or revised under the rule may be implemented until 
the responsible official either establishes an EMS or conforms to a 
multi-unit, regional, or national level EMS. The Department believes 
this change from the proposed rule will improve integration of EMS into 
the plan development and revision process by allowing plan components 
to inform the identification of environmental aspects in an EMS.
    Comment: Contribution of EMS to the planning process. Several 
respondents questioned the value of including EMS in the proposed rule. 
A respondent expressed the belief that EMS is voluntary for industry 
and not enforceable; however, incorporating it in the planning rule 
would give it the force of law against the Agency. One respondent noted 
that although the

[[Page 21485]]

effectiveness of monitoring should be tightly integrated into each 
forest plan, it can be done without a burdensome and impractical EMS. 
Other respondents said that the existing planning process has adequate 
requirements for adaptive management, and the requirement to develop an 
EMS is redundant. Another respondent found requiring EMS to be 
inconsistent with the proposed rule's intent to be strategic rather 
than prescriptive. Another respondent suggested the requirement for EMS 
be moved to the directives and expanded to provide guidance on its 
scope and use. Conversely, some respondents expressed support for 
including an EMS in the rule. Several respondents expressed the opinion 
that a strategic forest plan accompanied by an EMS was preferable to a 
prescriptive forest plan.
    Response: EMS is based on a national standard and the procedures 
for enforcing it will be established in the technical guide and 
directives. The standard lays out management system elements. EMS can 
be applied to any organization that wants to use it, not just industry. 
The final rule requires the responsible official to establish an EMS or 
conform to multi-unit, regional, or national level EMS with a land 
management emphasis. By letter of direction from the Chief and through 
its directives, the Forest Service will implement a national EMS 
applicable to all administrative units of the Forest Service.
    Implementation of the EMS will be governed by the Forest Service 
directives. A technical guide is being prepared for use by EMS managers 
and an EMS handbook is being developed for use in the field. The scope 
of the EMS will address the goals of EO 13423, nationally identified 
land management environment aspects, and as appropriate, local 
significant environmental aspects.
    The EMS will be designed to conform to the ISO 14001 standard, as 
required by section 219.5(c). Audit procedures will be established in 
the technical guide or directives. Conformance will be determined by 
adherence to the procedures detailed in the directives for the EMS. A 
``non-conformity'' identified by a management review or audit under 
these EMS procedures is not a failure to conform to the ISO 14001 
standard, per section 219.5(c), but part of the ``Plan-Do-Check-Act'' 
(P-D-C-A) cycle of continuous improvement that makes up the ISO 
conformant EMS. A non-conformity would be followed up with preventive 
or corrective action which leads to continuous improvement in 
environmental performance. Such a ``non-conformity'' is a normal part 
of the EMS P-D-C-A process and does not constitute a failure to conform 
to the ISO 14001 standard as required by section 219.5(c).
    Administrative units that do not have an EMS will satisfy the 
requirement in section 219.5 when they implement the national EMS and 
either add significant environmental aspects and components under the 
local focus area or determine that the national EMS significant 
environmental aspects sufficiently identify and deal with the local 
unit's concerns. The detailed procedures and requirements for a Forest 
Service EMS under section 219.5 are being developed in a national 
technical guide and the Forest Service directives.
    Although the Department recognizes concerns about potential 
redundancy in management systems due to EMS requirements, the 
Department is committed to integrating EMS with existing management 
systems or modifying existing systems to be consistent with EMS. The 
Department believes incorporating EMS in the planning rule better 
integrates adaptive management and EMSs in Forest Service culture and 
land management planning practices. This will help the Agency apply the 
principles of adaptive management to Agency operations.
    Comment: EMS design and purpose. Several respondents felt that the 
Agency needs to clarify the purpose and contents of its EMS. One 
respondent specifically asked for clarification on the sustainable 
consumption component of the national EMS framework and how the public 
can be involved in the development of a unit's EMS.
    Response: The Forest Service is committed to use EMS as a national 
framework for adaptive management. Details on the requirements of EMS, 
including procedures for public involvement, will be placed in the 
Forest Service directives. The sustainable consumption focus area of 
the national EMS discusses the goals outlined in Executive Order 13423 
``Strengthening Federal Environmental, Energy and Transportation 
Management.''
    Comment: Applicability of International Organization of 
Standardization (ISO) 14001. Some respondents expressed the view that 
the ISO 14001 was designed for businesses, corporations, and facilities 
that cause pollution and that it would be an awkward fit to natural 
resource management agencies.
    Response: The ISO standard simply lays out management system 
elements. EMS can be applied to any organization that wants to use it, 
not just industry. The Forest Service will use the ISO 14001 elements 
as the framework for EMS development for two reasons. It is the most 
commonly used EMS model in the United States and around the world. This 
will make it easier to carry out and understand (internally and 
externally) because there is a significant knowledge base about ISO 
14001. Second, the National Technology and Advancement Act of 1995 
(NTAA) (Pub. L. 104-113) requires that Federal agencies use or adopt 
applicable national or international consensus standards wherever 
possible, in lieu of creating proprietary or unique standards. The 
NTAA's policy of encouraging Federal agencies to adopt tested and well-
accepted standards, rather than reinventing-the-wheel, clearly applies 
to this situation where there is a ready-made international and 
national EMS consensus standard (through the American National 
Standards Institute) that has already been successfully carried out in 
the field.
    The Agency's approach to EMS under the final rule incorporates 
lessons learned from the fiscal year (FY) 2006 EMS pilots. These pilots 
involved all Forest Service regions and 18 national forests and 
grasslands. The pilots revealed that a forest-by-forest approach to 
EMS: (1) Creates many redundancies, (2) burdens field units with 
unnecessarily duplicative work, (3) introduces inconsistencies, and (4) 
makes it difficult to assess regional and national trends emerging from 
EMS efforts because there is no standardization between units. Because 
of these problems, the Forest Service now proposes to develop a single, 
national EMS that will serve as the basis for environmental improvement 
on each unit of the NFS and as the basis for the EMS to be implemented 
on each unit. The national EMS will include three focus areas: 
Sustainable consumption, land management, and local concerns. The 
sustainable consumption focus area concentrates on the consumption of 
resources and related environmental impacts associated with the 
internal operations of the Forest Service. This focus area is the 
Agency's way to achieve the goals of Executive Order 13423, 
``Strengthening Federal Environmental, Energy, and Transportation 
Management.'' The sustainable consumption focus area will apply to 
items such as increasing energy efficiency, reducing the use of 
petroleum in fleets, and improving waste prevention and recycling 
programs. The land management focus area of the national EMS will 
include land management activities applicable

[[Page 21486]]

to all national forests and grasslands. A review of the 2006 EMS pilot 
program and review of the Agency's Strategic Plan found each local unit 
EMS will at a minimum include: (1) Vegetation management, (2) wildland 
fire management, and (3) transportation system management as 
significant aspects. The activities covered under the sustainable 
consumption and the land management focus areas include aspects and 
components that will be discussed in a national level EMS. Therefore 
the change in the final rule at section 219.5 that allows the 
responsible official to conform to multi-unit, regional, or national 
level EMS will allow the responsible official to cover the sustainable 
consumption and land management focus areas. The uniform approach to 
sustainable consumption and land management aspects and components in 
the national EMS will enable the Forest Service to track progress in 
achieving the objectives of the Forest Service Strategic Plan and unit 
land management plans and supply a feedback loop that will help improve 
the Agency's response when goals and objectives are not being met. The 
local focus area allows local units to include aspects and components 
specific to an individual unit's environmental conditions and programs. 
Each Forest Service unit's implementation of the national EMS could 
differ with respect to the locally identified significant environmental 
aspects.
    Several administrative units established EMSs as a part of the 
pilot effort before the Forest Service adopted a consistent national 
approach. Those administrative units' EMSs include locally unique 
environmental aspects and components as well as the environmental 
aspects and components they have in common with other units. Those 
common environmental aspects and components are similar to the 
environmental aspects and components that will be developed under the 
sustainable consumption and land management focus areas of the national 
EMS. Because an EMS includes procedures to add new requirements, these 
administrative units have procedures to transition to the requirements 
developed under the national EMS and they will subsequently conform to 
the national EMS. Therefore, the EMS requirement under section 219.5(d) 
is met for those units. Administrative units that do not have an EMS 
will satisfy the requirement in section 219.5 after they implement the 
national EMS and either add significant environmental aspects and 
components under the local focus area or determine that the national 
EMS significant environmental aspects sufficiently identify and deal 
with the local unit's concerns.
    Comment: EMS as substitute for NEPA or NFMA requirements. Some 
respondents expressed the opinion that EMS appears to be an entirely 
inappropriate substitute for NEPA to advance the public's interest in 
protecting the environmental integrity of the national forests. Another 
respondent expressed the opinion that EMS should not be a replacement 
for the standards and limits required by NFMA.
    Response: The final rule requires all forest plans to be consistent 
with NFMA requirements, and an EMS will not be a replacement for these 
requirements. The final rule also requires the responsible official to 
select the appropriate level of NEPA analysis. The Forest Service will 
apply EMS as a tool for monitoring and effective adaptive management. 
EMS is not an environmental ``analysis'' system and is not a substitute 
for appropriate NEPA analysis.

Section 219.6--Evaluations and Monitoring

    This section specifies requirements for plan evaluation and plan 
monitoring. The Department retains the 2007 proposed rule wording in 
the final rule except for minor changes. In paragraph (a)(1), the 
Department added that a comprehensive evaluation report may be combined 
with other documents, including NEPA documents. This change to the 
provision about comprehensive evaluation was done to eliminate a 
perception among Forest Service managers that two documents may be 
required if an EA or an EIS were prepared. In paragraph (b)(2), the 
Department removed the provision requiring the monitoring program to 
provide for monitoring of multiple-use objectives because paragraph 
(b)(2) also requires the monitoring program provide for monitoring of 
``the degree to * * * making progress toward * * * objectives for the 
plan,'' which includes multiple-use objectives. Because multiple-use 
objectives will still be monitored, this is not a substantive change.
    In paragraph (b)(2), the Department changed the provision requiring 
the monitoring program to determine the effects of the various resource 
management activities within the plan area on the productivity of the 
land. The term ``productivity'' refers to all of the multiple uses, 
such as outdoor recreation, range, timber, watershed, and wildlife and 
fish. Use of this term is broader than just commercial uses. The 
Department changed the provision to require the monitoring program to 
provide for monitoring to assist in evaluating the effects of each 
management system to the end that it will not produce substantial and 
permanent impairment of the productivity of the land. The Department 
made this change in wording based on comments from Forest Service 
managers that the proposed rule wording was confusing. Therefore, the 
Department used the same words as NFMA at 16 U.S.C. 1604(g)(3)(C). The 
term ``management system'' in this provision means vegetation 
management system, such as, even-aged system, two-aged system, or 
uneven-aged system. Because the revised wording still carries out the 
intent of the NFMA, this is not a substantive change.
    Because of a request by Alaska Native Corporations, the Department 
added the name Alaska Native Corporation to the list of possible 
partners for joint monitoring.
    The final rule allows the monitoring program to be changed with 
administrative corrections and public notification, instead of 
amendments, to enable the Forest Service to implement improved 
techniques and eliminate those proven not to be effective, and account 
for unanticipated changes in conditions. Changes in a monitoring 
program will be reported annually, and the responsible official has 
flexibility to involve the public in a variety of ways in developing 
changes to the program.
    Comment: Guidance or requirements for monitoring. A respondent 
commented that the proposed rule failed to provide any guidance on what 
or how to monitor and evaluate. The respondent said that adaptive 
management requires compatible or standardized information to allow 
managers to learn from current management and make appropriate 
modifications, but that the proposed rule does not require such a 
system or provide guidance in how to set up a successful monitoring 
system. The rule does not require monitoring of any specific resources 
or actions such as monitoring wildlife or fuels reduction projects. 
With no system in place, a forest manager could selectively monitor 
some resources and activities and ignore others.
    Response: The Department agrees standardized information collection 
through monitoring is an important part of adaptive management. The 
final rule includes a core set of requirements for establishing a 
monitoring system. These

[[Page 21487]]

include that monitoring must provide for determining whether management 
systems are producing substantial and permanent impairment of the 
productivity of the land and the extent to which on-the-ground 
management is maintaining or making progress toward the desired 
conditions and objectives of the plan (sec. 219.6(b)(2)). There is 
further guidance that monitoring must be prepared with public 
participation and take into account key social, economic, and 
ecological performance measures, and best available science (sec. 
219.6(b)(1)). The Forest Service Directives System and other technical 
guidance provide information on how to design and conduct a monitoring 
program.
    Rather than impose through this planning rule a standardized list 
of resources or activities for monitoring, the Agency believes that 
monitoring needs are best determined for each individual unit. 
Requiring standard information to be collected on fuels may be a 
critical element to fire-prone forests, but it is not to wet forests 
where fire is a less important ecological process. The reality of 
limited financial and technical capabilities makes it particularly 
important that forest managers be allowed to develop a monitoring 
program appropriate for the information needs of each forest without 
the additional burden of providing standardized information of limited 
utility to some forests.
    Comment: Need for wildlife monitoring. Several respondents stated 
wildlife monitoring must be done to ascertain the effects of projects 
on wildlife.
    Response: The final rule establishes a process for developing, 
amending, and revising land management plans for the NFS (sec. 
219.1(a)). If the responsible official determines that provisions in 
plan components, in addition to those required for ecosystem diversity 
are needed to provide appropriate ecological conditions for specific 
threatened and endangered species, species-of-concern, and species-of-
interest, then the plan must include additional provisions for these 
species. The rule also requires plans to include monitoring of the 
degree to which on-the-ground management is maintaining or making 
progress toward the desired conditions and objectives for the plan. 
Accordingly, a forest plan's monitoring program would include 
monitoring of effects on wildlife where appropriate.
    Comment: Monitoring detail in the rule. Some respondents were 
concerned that the proposed rule did not include requirements for 
detailed monitoring of objectives and standards.
    Response: The rule requires a plan's monitoring program to take 
into account financial and technical capabilities, key social, 
economic, and ecological performance measures relevant to the plan 
area, and best available science in monitoring the degree to which on-
the-ground management is maintaining or making progress toward the 
desired conditions and objectives for the plan. Because plan components 
such as desired conditions, objectives, and standards (if a plan 
includes them) will reflect management specific to a particular unit of 
the NFS, the plan's monitoring program will need to be tailored to that 
unit as well. By requiring a plan's monitoring program to focus on the 
achievement of desired conditions and objectives, the rule strikes a 
balance between providing needed detailed direction and discretion of 
the responsible official.
    Comment: Collecting relevant and necessary information. Some 
respondents noted there is no process for assuring the Agency will 
collect relevant and necessary information. Permitting merely the use 
of available information (especially if no information is available) 
gives the Agency an excuse for not collecting the right monitoring 
information. One respondent said the proposed rule abdicates the Forest 
Service's responsibility to monitor species and perform population 
assessments, shifting that burden to the public, which will have little 
or no record of data from the Agency on which to rely.
    Response: As described in section 219.6(b)(1) in the final rule, 
the monitoring program will be developed with public participation and 
will take into account the best available science. Section 219.6(a)(3) 
of the final rule requires an annual evaluation of monitoring 
information. These steps would help assure that the monitoring program 
gets the right information.
    Comment: Need for evaluation of current conditions. Respondents 
stated it is imperative the Forest Service evaluate current conditions 
that resulted from past management decisions before making changes in 
management direction.
    Response: Under the final rule baseline information would be 
collected as needed to establish trends for social, economic, and 
ecological sustainability. Section 219.6(a) of the final rule requires 
three types of evaluations. These include comprehensive evaluations for 
plan revisions that must be updated every 5 years (sec. 219.6(a)(1)), 
evaluation for a plan amendment (sec. 219.6(a)(2)), and annual 
evaluations of the monitoring information (sec. 219.6(a)(3)).
    Comment: Monitoring of goals and objectives. Some respondents 
stated the lack of any requirements in the planning rule for meeting 
forest plan goals and objectives assures that any monitoring plan will 
be meaningless.
    Response: The final rule provides for monitoring the degree to 
which management is making progress toward the desired conditions and 
objectives for the plan (sec. 219.6(b)). Section 219.6(a)(3) of the 
final rule calls for an annual evaluation to be made of this monitoring 
information. Under the final rule, if plan objectives are not realized 
due to budget constraints, changed conditions, or other reasons, the 
desired conditions may not be realized. If monitoring and evaluation 
indicates that certain objectives and/or desired conditions are not 
achievable, the responsible official would consider the need for a plan 
amendment or revision or may consider stepping up on-the-ground 
management to actually improve progress toward desired conditions and 
objectives.
    Comment: Substantial changes in evaluation reports. A respondent 
was concerned that the term `substantial changes in conditions and 
trends' as described in section 219.6(a)(1) was not defined and thus 
did not allow the public to review and understand what is expected in 
the updated comprehensive evaluation.
    Response: Section 219.9(a) of the final rule requires public 
involvement in the updating of the comprehensive evaluation report. It 
is expected that the update of the comprehensive evaluation will 
involve a general review of relevant conditions and trends with 
emphasis on those whose changes that are considered substantial. 
Accordingly, the public will have an opportunity to tell the 
responsible official what they believe are substantial changes in 
conditions and trends.
    Comment: Analysis for a project or activity should not be 
sufficient for a plan amendment. A respondent disagreed with the 
proposed rule at section 219.6(b)(2) that states that the analysis 
prepared for a project or activity satisfied requirements for an 
evaluation for an amendment. The concern is there would be no analysis 
to evaluate how an exception made for the project or activity will 
affect the plan.
    Response: The project or activity analysis that satisfies the 
requirements for an evaluation report for a plan amendment that only 
applies to the project or activity decision must also meet the 
requirements in section 219.6(a) and section 219.6(a)(2). These

[[Page 21488]]

include an evaluation commensurate to the levels of risk or benefit 
associated with the nature and level of expected management in the plan 
area and an analysis of the issues relevant to the purposes of the 
amendment.

Section 219.7--Developing, Amending, or Revising a Plan

    This section discusses plan components; planning authorities; 
planning process, including the process for review of areas with 
potential for wilderness recommendation; administrative corrections; 
plan document or set of documents; and the plan approval document. The 
Department retains the 2007 proposed rule wording in the final rule 
except for minor changes: In paragraph 219.7(a)(1), the Department 
changed the wording about EMS documents from ``documents relating to 
the EMS established for the unit'' to ``applicable EMS documents, if 
any.'' This change to the description of documents was made because the 
Forest Service will maintain separate records for EMS. Separate records 
are necessary because the responsible official may conform to multi-
unit, regional, or national level EMS. In paragraph 219.7(a)(2)(iv), 
the Department added wording to acknowledge that the responsible 
official may identify an area as generally unsuitable for various uses. 
The Department added these words to avoid confusion. Some public 
comments indicated that identification of an area as generally not 
suitable for uses would be perceived as a final decision. Therefore the 
Department clarified its intent. The Department views this as an 
outgrowth of the proposed rule's suitability provisions and not a 
substantive change. In paragraph 219.7(a)(3) the Department added a 
paragraph to explicitly list standards as a possible plan component. As 
discussed in the decision and rationale section of this preamble, the 
Department added that standards may be included in a plan in response 
to public comments and the Agency's desire to include standards as a 
plan component when appropriate. This clarifies the Department's intent 
that standards are an option for the responsible official as described 
in the preamble to the proposed rule (72 FR 48528). This is not a 
substantive change because this option was available under the proposed 
rule and because this was considered in the range of alternatives in 
the EIS.
    In paragraph 219.7(b)(4), the Department added wording to allow 
administrative corrections for projections of uses or activities in 
addition to timber management projections. This change was made at the 
request of Forest Service managers to allow planners to update 
projections of other uses besides timber to be updated. If the Forest 
Service is allowed to update timber projections, then updates should 
similarly be allowed for other resources. Because projections of use 
are not decisions, this is not a substantive change. In paragraph 
219.7(c)(6), the Department added wording that if a plan approval 
document is the result of an EA or EIS process, the plan approval 
document would be done in accord with Forest Service NEPA procedures. 
This wording was added to ensure that a plan approval document in these 
circumstances would meet both the requirements of the final rule and 
agency NEPA procedures. This is not a substantive change as the 
addition ensures the planning rule is consistent with existing Forest 
Service NEPA procedures.
    Section 219.7(b) provides for administrative corrections to include 
changes in the plan document or set of documents, except for 
substantive changes in the plan components. This is done to allow for 
continual inclusion of new science and other information into the plan 
document or set of documents. Changes to the plan document or set of 
documents may also occur when outdated documents are removed, for 
example, when a new inventory replaces an older one.
    Comment: Triggering an amendment or revision. Some respondents 
stated concerns about how the proposed rule describes the way plan 
revisions will be triggered. One concern is the perception that the 
responsible official will have unfettered discretion to amend or revise 
the plan without any guidance as to what types of events would be 
rational for changing the plan. These respondents urge that the rule 
include a representative list of the general types of events that might 
trigger a plan amendment or revision. Some respondents urge that an EIS 
and public involvement be required when forest plans are changed.
    Response: The final rule provides the responsible official 
discretion about whether to initiate a plan amendment or plan revision, 
subject to the NFMA requirement that the plan be revised at least every 
15 years. The periodic evaluations required by the final rule would 
document current conditions and trends for social, economic, and 
ecological systems in the area of analysis (sec. 219.6(a)) and aid the 
responsible official in determining if a plan amendment or plan 
revision is needed and what issues need to be considered. The 
responsible official will be able to amend or revise the plan based on 
information obtained by monitoring and evaluation, as well as other 
factors. The Department believes that the efficiencies of the final 
rule would be reduced if the planning rule attempted to identify every 
specific event that must occur before a plan revision or plan amendment 
can be initiated.
    Plan amendments prepared under the procedures described in the 
final rule will have a 90-day comment period and will have a 30-day 
objection opportunity. If a NEPA document is part of a plan 
development, plan amendment, or plan revision the NEPA document will be 
prepared in accord with Forest Service NEPA procedures.

Section 219.7(a)(2)(i)--Plan Components--Desired Conditions

    Comment: Addressing elements of sustainability in desired 
conditions. Some respondents urged that the components of 
sustainability (social, economic, ecological) be given equal footing in 
the descriptions of desired conditions. They stated that very specific 
detailed descriptions are needed in order to establish meaningful 
objectives and without detailed desired condition descriptions, 
objectives will not be met.
    Response: Under the final rule, desired conditions will be the 
social, economic, and ecological attributes toward which management of 
the land and resources of the plan area are to be directed. The Agency 
agrees that well defined desired condition descriptions are useful, 
because they provide a clear basis for project or activity design and 
are needed to effectively establish objectives.

Section 219.7(a)(2)(ii)--Plan Components--Objectives

    Comment: Nature of objectives. One respondent expressed concern 
that objectives are described as aspirational rather than being defined 
as concrete, measurable, and time specific as in previous rules.
    Response: Under the final rule, the objectives are measurable 
projections of time specific intended outcomes and are a means for 
measuring progress toward reaching desired conditions (sec. 
219.7(a)(2)(ii)). These objectives can be thought of as a prospectus of 
anticipated outcomes, based on past performance and estimates of future 
trends. These objectives must be measurable, so progress toward 
attainment of desired conditions can be determined. Variation in 
accomplishing objectives would be expected due to changes in

[[Page 21489]]

environmental conditions, available budgets, and other factors.
    Comment: Timber production objectives. Some respondents are 
concerned that if the timber sale program quantity (TSPQ) and the acres 
and volumes of projected management practices are objectives and the 
basis for achieving the desired conditions, then if the Agency does not 
meet these objectives the desired condition will never be achieved.
    Response: We agree. Under the final rule, if plan objectives are 
not realized due to budget constraints, changed conditions, or other 
reasons, the desired conditions may not be realized. If monitoring and 
evaluation indicates that certain objectives and/or desired conditions 
are not achievable, the responsible official would consider the need 
for a plan amendment or revision or may consider stepping up on-the-
ground management to actually improve progress toward desired 
conditions and objectives.

Section 219.7(a)(2)(iii)--Plan Components--Guidelines

    Comment: Mandatory protections. Several respondents raised concerns 
because they felt the proposed rule removes mandatory protections for 
resources such as water and wildlife and removes the restraints on 
clearcutting that have been in place for over 25 years. Most of these 
respondents requested the final planning rule provide at least the 
minimum protections from the 1982 rule and these protections and those 
required by the NFMA not be weakened. Other respondents said the 
flexibility incorporated in the 2007 proposed rule better allows the 
Agency to carry out its mission and adapt to changing conditions. Other 
respondents are pleased the proposed rule featured the use of 
guidelines as opposed to standards.
    Response: The final rule provides for inclusion of standards as a 
plan component (sec. 219.7(a)(3)). Standards are constraints on project 
and activity decisionmaking and may be established to help achieve the 
desired conditions and objectives of a plan and to comply with 
applicable laws, regulations, Executive orders, and agency decisions. 
When a plan contains standards, a project or activity must be designed 
in accord with the applicable standard(s) in order to be consistent 
with the plan. If a proposed project would be inconsistent with the 
plan, the responsible official must modify the proposal, reject the 
proposal, or amend the plan.
    NFMA requirements for timber harvest are in the final rule text 
(sec. 219.12(b)) including provisions for protection of soil, 
watershed, and other resources during timber harvest. The final rule 
depends on the Forest Service Directive System to further specify how 
to meet the NFMA requirements. Existing directives are available at 
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fs.fed.us/im/directives. These directives will be revised to 
be consistent with the final rule.
    Current guidance for timber harvest is provided in the 1920 section 
of the FSM and in FSH 1909.12, chapter 60 for even-aged harvest, 
reforestation, and stocking requirements, suitability determinations, 
calculation of long-term sustained yield, and calculation of timber 
sale program quantities. Detailed direction on watershed protection and 
management may be found in FSM 2520.
    About the comments on guidelines removing the protections from the 
1982 rule for wildlife, the final rule and directives are explicitly 
designed to work together and provide for ecological sustainability 
through the combination of ecosystem diversity and species diversity 
approaches. Under the existing directives adopted to carry out the 2005 
planning rule, species-of-concern would be identified based on 
NatureServe rankings (FSH 1909.12 section 43.22b). Under the existing 
directives species-of-interest would be identified considering many 
sources including those listed by states as threatened or endangered 
and those identified in state comprehensive plans as species of 
conservation concern (FSH 1909.12 section 43.22c). Under the final 
rule, the primary purpose for identifying species-of-concern is to put 
in place provisions that will contribute to keeping those species from 
being listed as threatened or endangered. The combined criteria for 
species-of-concern and species-of-interest currently in the Forest 
Service directives would lead to identification of all species for 
which there are conservation concerns. Particularly, criterion five for 
species-of-interest (FSH 1909.12, sec. 43.22(c)), which directs 
identifying ``additional species that valid, existing information 
indicates are of regional or local conservation concern due to factors 
that may include significant threats to populations or habitat, 
declining trends in populations or habitat, rarity, or restricted 
ranges.'' Species for which there are no conservation concerns would be 
adequately conserved through the ecosystem diversity approach.

Section 219.7(a)(2)(iv)--Plan Components--Suitability of Areas

    Comment: Applicability of suitability and other plan components in 
restricting or prohibiting projects or activities. Some respondents 
recommended the description of objectives, guidelines, suitability of 
areas, and special areas be clarified so decisions on these components 
do not constitute a final commitment restricting or prohibiting 
projects or activities. Other respondents said the plan must make a 
clear decision on priority land use if the plan is to be of use in 
guiding management. Still others agreed general suitability 
determinations are appropriate for a strategic forest plan.
    Response: Under the final rule section 219.7(a)(2), plan 
objectives, guidelines, suitability of uses, and special areas 
designations are not commitments or final decisions approving projects 
and activities. Plan components provide guidance for future project and 
activity decisionmaking. The responsible official will identify 
suitable uses that best fit the local situation. Suitable use 
identification has evolved over time. Suitable use identification has 
often been characterized in plans prepared under the 1982 planning rule 
as permanent restrictions on uses or permanent determinations that 
certain uses would be suitable in particular areas of the unit over the 
life of the plan. However, even under the 1982 planning rule, these 
identifications were never truly permanent, unless they were statutory 
designations by Congress. It became apparent early in implementation of 
the 1982 planning rule that plan suitability identifications, like 
environmental analysis itself, always necessitated site-specific 
reviews when projects or activities were proposed. For example, on 
lands identified as generally suitable for timber production, site-
specific analysis of a proposal could identify a portion of that area 
as having poor soil or unstable slopes. The project design would then 
exclude such portions of the project area from timber harvest. Thus, 
the final determination of suitability was never made until the project 
or activity analysis and decision process was completed. This final 
rule better characterizes the nature and purpose of suitability 
identification.
    The response to comment section on 219.8 has more discussion about 
how projects and activities must be consistent with the plan.

[[Page 21490]]

Section 219.7(a)(2)(v)--Plan Components--Special Areas

    Comment: Nature of special designations. A respondent commented 
that the proposed rule allow the plans to designate or remove 
designation from certain types of special areas. In the past, this type 
of action would require environmental review under NEPA, but under the 
proposed plan, these changes could be made without environmental 
review. Some respondents stated special designations and final 
decisions should not be made without some kind of analysis to support 
that designation. Others suggested that the Appalachian National Scenic 
Trail, as well as other congressionally designated national scenic and 
historic trails, be in the list of special designations and that 
management direction for special areas be in forest plans.
    Response: Under the final rule, the level of NEPA analysis needed 
to support designations would be consistent with agency NEPA 
procedures. The responsible official may designate special areas for 
unique or special characteristics during plan development, plan 
amendment, or plan revision. These areas include national scenic and 
historic trails, wilderness, wild and scenic river corridors, and 
research natural areas. National scenic and historic trails, 
wilderness, and wild and scenic river corridors are statutorily 
designated. Other areas (such as national scenic and historic trails) 
may be designated through plan development, amendment, revision, or 
through a separate administrative process with an appropriate level of 
NEPA analysis. The types of special areas that the responsible official 
may designate or remove depend on the designation authority in Forest 
Service directives, regulation, or statute (FSH 1909.12 section 11.15). 
The intent of the new rule is not to expand the use of special areas 
into totally new categories, but rather to assure that plans recognize 
the categories established by Congress, the Department, or the Agency. 
For example, the forest supervisor may recommend research natural areas 
(RNAs) but regional foresters may designate RNAs. The forest supervisor 
may recommend national scenic and historic trails, wilderness, and wild 
and scenic river corridors but only the Congress may designate. Under 
this final rule the Department envisions forest supervisors designating 
areas with the following characteristics: scenic, geological, 
botanical, zoological, paleontological, historical, and recreational as 
discussed in FSM Chapter 2372. Designating a special area that simply 
identifies one or more of these characteristics, and also includes plan 
components developed for that particular area, may occur without 
further NEPA analysis and documentation. The responsible official with 
designation authority may propose a prohibition on projects or 
activities in specific special areas. Furthermore if the prohibition 
commands anyone to refrain from undertaking projects and activities in 
the areas, or that grants withholds or modifies contracts, permits, or 
other formal legal instruments, that proposed designation would be done 
in accord with the Forest Service NEPA procedures.

Section 219.7(a)(6)(ii)--Plan Process--Consideration and Recommendation 
for Wilderness

    Comment: Roadless inventory procedures and wilderness 
recommendations. Some respondents stated the wilderness review required 
by the rule should require that the roadless areas inventory include 
those areas that do not have maintained roads and that may have been 
missed in past reviews.
    Some respondents are concerned that section 219.7(a)(5)(ii) of the 
proposed rule required a vast expansion of areas to be considered for 
wilderness because the language is overly broad and does not specify 
what constitutes wilderness characteristics or to what degree such 
characteristics must be present to merit evaluation. These respondents 
were concerned this language will lead to expansion of wilderness 
without considering other multiple uses. Other respondents believed 
this section of the rule is in conflict with the nature of plans as 
strategic and not a final agency decision and recommend the removal of 
section 219.7 from the final rule. Some respondents suggested this 
section of the rule exclude national forests in Alaska from further 
wilderness review and recommendation.
    Response: Identification of potential wilderness areas and 
wilderness recommendations has always been an integral part of the NFS 
planning process. The process for wilderness evaluation has not changed 
from the requirements in the 1982 rule. Under the final rule section 
219.7(a)(6)(ii), the responsible official will ensure that, unless 
otherwise provided by law, all NFS lands possessing wilderness 
characteristics be considered for recommendation as potential 
wilderness areas during plan development or revision. Identification of 
potential wilderness areas and wilderness recommendations has always 
been an integral part of the NFS planning process. The final rule 
directs responsible officials to ensure that, unless otherwise provided 
by law, all NFS lands possessing wilderness characteristics be 
considered for recommendation as potential wilderness areas during plan 
development or revision. The Forest Service directives (FSH 1909.12, 
chapter 70) provide the detailed criteria for the identification of 
potential wilderness areas and the wilderness evaluation process to 
follow in carrying out the requirements of the rule. The inventory 
criteria for potential wilderness areas are not part of the final rule. 
About roads, the inventory criteria from FSH 1909.12 section 71.1 
states that such areas do not contain forest roads (36 CFR 212.1) or 
other permanently authorized roads, except as permitted in areas east 
of the 100th meridian. Forest roads have a wide range of maintenance 
levels and may be closed and not maintained for passenger vehicles. The 
final rule does not predetermine the plan decision a responsible 
official may make concerning the future management of areas meeting 
potential wilderness criteria. A variety of options may be considered. 
Final decisions on designation of wilderness are made only by Congress, 
and those designations may or may not follow agency recommendations.

Section 219.7(a)--Developing Options

    Comment: Developing a forest plan requires the consideration of 
alternatives. A respondent commented that one of the most valuable 
elements of the existing planning process is the consideration of 
alternatives. This has yielded new ways of reconciling issues, often 
through ideas and alternatives submitted by scientists and other 
reviewers. Not having alternatives to consider puts the Forest Service 
in the unenviable position of making decisions without having 
alternatives and their effects at its disposal.
    Response: Under the final rule, alternatives and their effects 
under NEPA are not needed for responsible officials to approve a plan. 
Section 219.7(a) of the final rule implements a collaborative and 
participatory process for land management planning. Under the final 
rule, the responsible official and the public may iteratively develop 
and review various options for plan components, including options 
offered by the public. Responsible officials and the public would work 
collaboratively together to narrow the options for a proposed plan 
based on analysis of the options instead of focusing on distinct 
alternatives carried through the entire process. The Forest Service 
developed this iterative option approach under the

[[Page 21491]]

final rule to encourage people to work together, to understand each 
other's values and interests, and to find common solutions to the 
important and critical planning issues. Alternatives under NEPA may 
also be developed if agency NEPA procedures require the preparation of 
an EIS or EA for a specific plan development, plan amendment, or plan 
revision.

Section 219.8--Application of a New Plan, Plan Amendment, or Plan 
Revision

    This section of the final rule describes how and when new plans, 
plan amendments, or plan revisions are applied to new or ongoing 
projects or activities. The Department retains the 2007 proposed rule 
wording in the final rule, with a minor change. Although the 2007 
proposed rule required project or activity consistency with the 
applicable plan, the final rule requires consistency with the 
applicable plan components. This change was made to avoid confusion. 
The Department wants to make clear that future projects do not have to 
be consistent with other information written in plans. Today and in the 
future, land management plans have other information in the plan 
besides plan components. For example, other information may include 
items such as collaboration strategies, program emphasis, management 
approaches, priorities, and resource strategies. These items may convey 
a sense of priority and focus among objectives so that the public will 
know where the responsible official expects to place the greatest 
importance. However, these are often quite speculative projections 
based on past trends of budget and program accomplishments. This other 
information is not the plan.
    Comment: Site specific applicability of the plan. A respondent 
commented that the proposed rule removed any applicability of the plan 
to site specific projects and violated NFMA by allowing project-
specific amendments rather than requiring that all projects be 
consistent with plan direction.
    Response: To respond effectively to new information or changed 
circumstances it is essential for the rule to include provisions for 
amending the plan when it is needed. The final rule requires that 
decisions approving projects and activities be consistent with the 
plan. Site-specific plan amendments are a valid method of achieving 
final rule plan consistency. Provisions at section 219.8(e)(3) are 
consistent with the NFMA provisions for plan amendments found at 16 
U.S.C. 1604(f)(4), NEPA regulatory requirements relevant to new 
information and changed circumstances at 40 CFR 1502.22, and Forest 
Service practice to allow project-specific amendments since the 1982 
rule.
    Comment: Consistency of projects and activities with the plan. 
Several respondents said the proposed rule at section 219.8 is not 
consistent with the rule preamble in describing consistency of projects 
and activities with plan guidelines. The preamble indicates that ``a 
project or activity design may vary from the guideline only if the 
design is an effective means of meeting the purpose of the guideline, 
to maintain or contribute to the attainment of relevant desired 
conditions and objectives.'' The preamble allows variation from plan 
guidelines without a plan amendment, but that option is not reflected 
in the proposed rule at section 219.8(e). These respondents were 
concerned that retaining this text from the proposed rule would 
override the statements in the preamble about plan flexibility and the 
nonbinding nature. Another respondent stated that the proposed rule and 
preamble do not explain or define what it means to be ``consistent'' 
with the plan.
    Response: To carry out the NFMA plan consistency mandate in an 
effective way, the Agency will amend the normal wording about plan 
consistency in the FSH 1909.12, section 11.4. This template wording 
should be used in revised plans. By amending the existing procedures in 
the Forest Service Directive System, the Agency will clarify how 
projects or activities must be consistent with applicable plan 
components. The public will have the opportunity to comment on this 
amendment to directives about consistency between projects and plans.
    Tentative wording for the proposed amendment may be as follows:
    (a) A project or activity is consistent with the desired condition 
component of the plan if it does not foreclose the opportunity for 
maintenance or attainment of the applicable desired conditions over the 
long term based on the relevant spatial scales described in the plan.
    (b) A project or activity is consistent with the objectives 
component of the plan if it contributes to or does not prevent the 
attainment of one or more applicable objectives.
    (c) A project or activity may be consistent with a guideline in one 
of two ways.
    (1) The project or activity is designed in accord with the 
guideline, or
    (2) A project or activity design varies from a guideline if the 
design is an effective means of meeting the purpose of the guideline to 
maintain or contribute to the attainment of relevant desired conditions 
and objectives. If the responsible official decides such a variance 
from a guideline is appropriate, the responsible official must document 
how the variance is an effective means of maintaining or contributing 
to the attainment of relevant desired conditions and objectives. A 
variance from a guideline does not require an amendment to the plan.
    (d) A project with the primary purpose of timber production may 
only occur in an area identified as suitable for that use (16 U.S.C. 
1604(k)).
    (e) For suitability of areas except for timber production, 
consistency of a project or activity should be evaluated in one of two 
ways.
    (1) The project or activity is a use identified in the plan as 
generally suitable for the location where the project or activity is to 
occur, or
    (2) The project or activity is not a use identified in the plan as 
generally suitable for the location, but the responsible official 
documents the use to be appropriate for that location.
    (f) Where a plan provides plan components specific to a special 
area, a project, or activity must be consistent with those area-
specific components.
    (g) A project or activity is consistent with a standard if the 
project or activity is designed in accord with the standard.
    Comment: Protecting valid existing rights. Several respondents 
expressed the view that all existing uses authorized by the Forest 
Service include valid existing rights and should be allowed to continue 
for the term of existing authorizations. Others indicated existing 
authorizations should only be modified if they conflict with applicable 
laws.
    Response: NFMA at 16 U.S.C. 1604(i) states, ``When land management 
plans are revised, resource plans and permits, contracts and other 
instruments, when necessary, shall be revised as soon as practicable. 
Any revision in present or future permits, contracts, and other 
instruments made pursuant to this section shall be subject to valid 
existing rights.'' The final rule section 219.8(a) is consistent with 
this requirement.

Section 219.9--Public Participation, Collaboration, and Notification

    This section of the final rule describes collaboration; comment 
periods; content of public notices, engaging interested individuals, 
organizations, and governments; and public notifications. The 
Department retains the 2007 proposed rule wording in the final rule, 
with minor changes.
    Because of a request by Alaska Native Corporations, the Department 
added the

[[Page 21492]]

name Alaska Native Corporation to the list of persons the responsible 
official must provide opportunities for collaboration (sec. 
219.9(a)(3)). As the responsible official must provide opportunities 
for many people to collaborate, this is not a substantive change.
    At paragraph (a)(3) of this section, the Department added a 
sentence saying that the responsible official should seek assistance, 
where appropriate, from federally recognized Indian Tribes and Alaska 
Native Corporations to help address management issues or opportunities. 
This change was made to make the requirements for engaging Tribal 
governments and Alaska Native Corporations similar to paragraph (a)(2) 
for engaging State and local governments and Federal agencies.
    At paragraph (b)(3)(v) of this section, the Department modified the 
wording to provide required content for a public notice in cases where 
an ongoing planning process under the 2005 rule was halted because of 
the district court's order in Citizens for Better Forestry v. USDA. The 
responsible official's public notice must state whether a planning 
process initiated before the final rule was promulgated will be 
adjusted to the final rule requirements. The Department modified the 
proposed rule wording because of public comment. Some respondents were 
unclear as to how the products created during land management planning 
under the 2005 rule, such as those generated with a interest group, 
would be used in the final plans. This notice now provides a vehicle 
for the public to learn if previously created products will be used. As 
the proposed rule, described in the content of the public notice for an 
adjustment to an ongoing planning process, this change in the 
requirements of the notice is not a substantive change.
    Comment: Public participation in the planning process. Several 
respondents commented that the proposed rule unfairly limits public 
participation in the planning process.
    Response: The final rule establishes public involvement procedures 
and requirements for formal public comment opportunities that go well 
beyond the requirements of NEPA. Specifically, the final rule requires 
the responsible official to involve the public in developing and 
updating a comprehensive evaluation report; in establishing the 
components of the plan, including the desired condition of the lands 
involved; and in designing the monitoring program to be carried out 
during the life of the plan. The requirements for public participation 
and collaboration for land management planning in the final rule create 
a high standard for agency performance. Considering all the 
opportunities to participate under the final rule, people would not 
only continue to have access to the land management planning process, 
they would have the opportunity to participate more meaningfully in 
bringing each plan to life. With the efficiencies under the final rule, 
plan revisions would be expected to take 2 to 3 years to complete as 
opposed to a 5 to 7 year period that was typical in the past under the 
1982 rule. The Agency believes this shorter timeframe would make it 
possible for more people to stay involved throughout the planning 
process.
    Comment: Public involvement if an EIS is not prepared. Many were 
concerned that without an EIS (as required under the 1982 rule), 
opportunities for public involvement and oversight in the land 
management planning process will be reduced or eliminated. They were 
concerned because specific public involvement requirements in the CEQ 
regulations that apply to EISs do not apply to categorical exclusions.
    Response: Categorical exclusions do not require the same system of 
public involvement as EISs. However, if a categorical exclusion is 
used, the rule's extensive requirements for public participation and 
collaboration apply nonetheless. The final rule provides greater 
opportunities for public notification and comment during the land 
management planning process than is required for an EIS. In addition, 
under the final rule, the responsible official is specifically required 
to involve the public in developing and updating the comprehensive 
evaluation report, establishing the components of the plan, and 
designing the monitoring program.
    Comment: Access to information if an EIS is not prepared. Some 
respondents were concerned that people will have less access to timely 
information about environmental impacts and the comparative advantages 
of various alternatives if an EIS is not prepared for plans. Some were 
concerned that there will not be legal recourse for submitting citizen 
alternatives. Some were concerned that the rule eliminates a 
``scoping'' phase, such as the 30-day period at the beginning of a NEPA 
process, and that the rule's 90-day comment period for proposed plans 
will be too late to have changes made.
    Response: The final rule section 219.9(a) requires public 
involvement at early stages of the planning process when the 
comprehensive evaluation report would be developed and updated. The 
comprehensive evaluations would provide information about the 
effectiveness of current forest management in achieving desired 
conditions. This can provide useful information to managers and the 
public for collaboratively developing a plan or identifying needed 
changes to discuss during plan revision. Formal public notification of 
the initiation of development of a plan is similar in timing to scoping 
under NEPA. Opportunity for public involvement is also required in the 
developing the components of the plan and designing the monitoring 
program. A 90-day comment period on a proposed plan is an NFMA 
requirement. Under the 1982 rule, it was done at the proposed plan/
draft EIS review stage. However, public involvement in the planning 
process is not intended to be limited to discrete 30-day or 90-day 
periods, but may occur throughout the process. Options may be 
considered as an iterative approach to developing plan components in 
collaboration with the public. Additional guidance and procedures for 
collaboration are supplied through agency directives located in FSM 
1921.6 and FSH 1909.12, chapter 30.
    Comment: Importance of government relationships. Some respondents 
reiterated the importance of collaborative relationships with other 
government entities that manage surrounding lands. Some respondents 
wanted the rule to provide an equivalent to the cooperating agency 
provision of NEPA.
    Response: Under the final rule, the responsible official must 
coordinate planning efforts with those of other resource management 
agencies. The responsible official will provide opportunities for other 
government agencies to be involved, collaborate, and participate in 
planning for NFS lands.
    Comment: Public notices via e-mail. Some respondents were concerned 
that few citizens review legal notices in newspapers or the Federal 
Register, and notices should be e-mailed to interested publics.
    Response: Under the final rule, a variety of public notification 
techniques may be used, including mail and e-mail. Public notification 
will be essential in meeting the public participation requirements of 
the rule.
    Comment: Public involvement in plan evaluation and monitoring. Some 
respondents commented that an opportunity for public involvement should 
be provided to change the monitoring program. One respondent suggested 
that some changes could have environmental effects and that these 
should only be done through a plan

[[Page 21493]]

amendment rather than simply required notification of change.
    Response: Under the final rule, the responsible official would 
notify the public of changes in the monitoring program and can involve 
the public in a variety of ways when considering changes in the 
program. Section 219.9(a) requires the responsible official to involve 
the public in developing and updating the comprehensive evaluation, 
establishing the components of the plan, and designing the monitoring 
program.
    Comment: Public involvement for administrative corrections. One 
respondent said administrative corrections might be significant, and 
should require public notice before they are made. The respondent 
believes that changes such as to logging projections and monitoring 
procedures constitute significant changes with environmental effects.
    Response: Administrative corrections are intended for non-
substantive changes to plan components and for changes in explanatory 
material. Long-term sustained-yield capacity (LTSYC) is a statutory 
limit on timber sale amount. The timber sale program quantity is an 
objective. Administrative corrections would not be appropriate for 
LTSYC or for the TSPQ. Administrative correction may be appropriate, 
however, for timber harvest projections which are for information 
purposes only, and are not binding. Timber harvest projections are not 
LTSYC or TSPQ, but, for example, may be estimates of the amount of 
harvest by cutting method, management emphasis, or product type. The 
directive system will require administrative corrections to be made 
available to the public through the unit's Web site or by other means.
    Comment: Extending Tribal consultation to Alaska Native 
Corporations. Several Alaska Native Corporations requested inclusion of 
language at section 219.9(a)(3) that would ensure consultation with 
Alaska Native Corporations as required by the 2004 and 2005 
Consolidated Appropriations Acts.
    Response: Alaska Native Corporations has been added to the engaging 
Tribal governments provision at section 219.9(a)(3) as well as to 
section 219.6(b)(3) on collaborative monitoring. The definition of 
``Alaska Native Corporations'' provided is in section 219.16.
    Comment: Consultation requirements when identifying species-of-
interest. Some respondents recommended the final rule specifically 
require consultation with the USFWS, state heritage, or natural 
resource agencies in the identification of species-of-interest.
    Response: The final rule at sections 219.9(a)(2 and 3) requires the 
responsible official to coordinate and engage with Federal agencies, 
local governments, and States during the planning process. The 
responsible official would provide opportunities for the coordination 
of Forest Service planning efforts with those of other resource 
management agencies and to seek assistance, where appropriate, from 
other State and local governments, Federal agencies, local Tribal 
governments, and scientific institutions to help address management 
issues or opportunities. Consultation with the USFWS (and NOAA 
Fisheries) is a process defined and required by the Endangered Species 
Act and which typically includes a requirement to identify listed 
species that may be affected.

Section 219.10--Sustainability

    This section of the final rule provides provisions for social, 
economic, and ecological sustainability. The Department retains the 
2007 proposed rule wording in the final rule.
    Comment: Elements of sustainability. Some respondents commended the 
Agency for continuing to define sustainability in terms of social, 
economic, and ecological elements; none of which trumps the others. It 
was felt this more accurately reflects the tenets of ecosystem 
management with its explicit recognition of the human dimension of 
natural systems and national forest management, and that the three 
types of sustainability are tightly linked. Moreover, respondents 
commented that although ecological sustainability is unarguably 
important, it needs to be balanced with the Agency's charge to 
``provide a continuous flow of goods and services to the nation in 
perpetuity'' as well as other obligations, such as with the Mining and 
Minerals Policy Act.
    Others believe that ecological sustainability should be the primary 
goal because ecological sustainability provides the needed assurance 
that social and economic benefits can be produced at sustainable 
levels. There was also the comment that the highest priority for forest 
management must be the maintenance of as complete a component of its 
species and natural processes as possible.
    Another respondent commented that sustaining social and economic 
systems may conflict with sustaining ecological systems, and asked what 
will be done to ensure that these goals do not conflict. Lastly, a 
respondent noted that the ``overview'' to the proposed rule states that 
plans ``should'' guide sustainable management, which implies that 
sustainable management is optional.
    Response: NFMA requires the use of the MUSYA to provide the 
substantive basis for forest planning and the development of one 
integrated plan for the unit. Under the final rule, the Agency would 
treat economic and social elements as interrelated and interdependent 
with ecological elements of sustainability, rather than as secondary 
considerations. Sustainability is viewed as a single objective with 
interdependent social, economic, and ecological components. This does 
not downplay the importance of ecological sustainability, as the MUSYA 
provides for multiple-use and sustained use in perpetuity without 
impairment to the productivity of the land. The final rule recognizes 
the interconnection between the ecological, social, and economic 
components of sustainability and requires consideration of each in the 
planning process. It establishes a planning process that can be 
responsive to the desires and needs of present and future generations 
of Americans for the multiple uses of NFS lands. The rule does not make 
choices among the multiple uses; it provides for a process by which 
those choices will be made during the development of a plan for each 
NFS unit.
    Comment: Time frames for sustainability. Some respondents stated 
that ecological sustainability is measured in decades and centuries 
while economic sustainability is usually measured in a five-year time 
frame. They recommended that sustainability be measured only by 
ecological sustainability time frames.
    Response: The Agency recognizes that time frames for ecological 
sustainability and economic sustainability will rarely match. The final 
rule allows for NFMA's requirement to consider both the economic and 
environmental aspects of various systems of renewable resource 
management during development of a plan.
    Comment: Approach to maintaining diversity. Some respondents 
believe that the proposed rule's reference to an ``overall goal'' of 
providing a framework and narrowing the focus to endangered and 
threatened species, species-of-concern and species-of-interest is not 
sufficient. Other respondents commented that following the coarse 
filter/fine filter approach is a major improvement, because scarce 
resources can be focused on communities rather than trying to devote 
the same attention to a myriad of species that are not in danger of ESA 
listing. Other respondents said that the proposed rule does little to 
specify how the

[[Page 21494]]

``framework'' will be crafted, how it will ``contribute to'' sustaining 
native ecological systems, or how plans will ``provide for'' threatened 
and endangered species, species-of-concern or species-of-interest.
    Response: The final rule sets forth the goal for the ecological 
element of sustainability to contribute to sustaining native ecological 
systems by sustaining healthy, diverse, and productive ecological 
systems as well as by providing appropriate ecological conditions to 
support diversity of native plant and animal species in the plan area. 
To carry out this goal, the final rule adopts a hierarchical and 
iterative approach to sustaining ecological systems: Ecosystem 
diversity and species diversity. The intent of this hierarchical 
approach is to contribute to ecological conditions appropriate for 
biological communities and species by developing effective plan 
components (desired conditions, objectives) for ecosystem diversity and 
supplementing it with species-specific plan components as needed, thus 
improving planning efficiency. The final rule leaves the specific 
procedures on how the framework will be crafted for the Forest Service 
directives. The Department believes it is more appropriate to put 
specific procedural analytical requirements in the Forest Service 
directives rather than in the rule itself so that the analytical 
procedures can be changed more rapidly if new and better techniques 
emerge. As discussed in agency directives, the responsible official 
will develop plan components for ecosystem diversity establish desired 
conditions, objectives, and other plan components, where feasible, for 
biological communities, associated physical features, and natural 
disturbance processes that are the desired components of native 
ecosystems. The directives specify how to deal with local conditions. 
Ecosystem characteristics include the structure, composition, and 
processes of the biological and physical resources in the plan area. 
The primary approach the Agency envisions for evaluation of 
characteristics of ecosystem diversity is estimating the range of 
variation that existed under historic disturbance regimes and comparing 
that range to current and projected future conditions. For specific 
detail procedures see FSM 1920 and FSH 1909.12, chapter 40.
    As part of the hierarchical and iterative approach, the plan area 
would be assessed for species diversity needs after plan components are 
developed for ecosystem diversity. The responsible official would 
evaluate whether the framework established by the plan components meets 
the needs of specific federally-listed threatened and endangered 
species, species-of-concern, and selected species-of-interest. If 
needed, the responsible official would develop additional provisions 
for these species to maintain a framework for providing appropriate 
ecological conditions in the plan area that contribute to the 
conservation of these species.
    Under the final rule, the Agency selected federally-listed 
threatened and endangered species, species-of-concern, and species-of-
interest for evaluation and conservation because: (1) These species are 
not secure within their range (threatened, endangered, or species-of-
concern), or (2) management actions may be necessary or desirable to 
achieve ecological or other multiple-use objectives (species-of-
interest). Species-of-interest may have two elements: (1) Species that 
may not be secure within the plan area and, therefore, in need of 
consideration for additional protection, or (2) additional species of 
public interest including hunted, fished, and other species identified 
cooperatively with State fish and wildlife agencies.
    Additional guidance is provided in Forest Service Directive System. 
For example, at FSM 1971.76c, plan components for federally-listed 
species must comply with the requirements and procedures of the ESA and 
should, as appropriate, carry out approved recovery plans or deal with 
threats identified in listing decisions. Plan components for species-
of-concern should provide the appropriate desired ecological conditions 
and objectives to help avoid the need to list the species under the 
ESA. Appropriate desired ecological conditions may include habitats of 
appropriate quality, distribution, and abundance to allow self-
sustaining populations of the species to be well distributed and 
interactive, within the bounds of the life history, distribution, and 
natural fluctuations of the species within the capability of the 
landscape and consistent with multiple-use objectives. (A self-
sustaining population is one that is sufficiently abundant and has 
appropriate population characteristics to provide for its persistence 
over many generations.) For species-of-interest, if a plan component 
will not contribute appropriate ecological conditions to maintain a 
desired or desirable species-of-interest, the responsible official must 
document the reasons and multiple-use tradeoffs for this decision.
    Comment: Meeting the NFMA diversity requirements. Some respondents 
stated that the proposed rule's sustainability provisions contain no 
clear mandates, no concrete obligations, and are unenforceable; so they 
do not meet the NFMA's diversity requirement. Others noted the proposed 
rule at section 219.10 only mentions the diversity of native plant and 
animal communities, but this section does not require plans to provide 
for that diversity or ensure that there will be a diversity of plant 
and animal communities, as required by NFMA. Another respondent 
challenged the wording at section 219.10(b) of the proposed rule that 
appears to make providing ecosystem and species diversity subservient 
to meeting multiple-use objectives, although the NFMA states that 
providing for diversity is a necessary component of meeting multiple-
use objectives.
    Response: The NFMA requires guidelines for land management plans 
that ``provide for diversity of plant and animal communities based on 
the suitability and capability of the specific land area in order to 
meet overall multiple-use objectives.'' (16 U.S.C. 1604(g)(3)(B)). The 
NFMA does not mandate a specific degree of diversity nor does it 
mandate viability. The NFMA affords the Agency discretion to provide 
policy guidance to provide for diversity. The final rule wording at 
section 219.10(b) is consistent with NFMA. As discussed the preamble to 
the 2005 planning rule (70 FR 1023, 1028, (January 5, 2005)) the Agency 
developed five concepts to design the planning rule provisions for 
plant and animal diversity: (1) Managing ecosystems; (2) providing for 
a diversity of species; (3) concentrating management efforts where the 
Agency has authority and capability; (4) determining with flexibility 
the degree of conservation needed for species not in danger of being 
listed; and (5) tracking progress of ecosystem and species diversity 
using a planning framework.
    Comment: Approach to providing ecosystem sustainability. Some 
respondents do not believe that the emphasis on ecosystem diversity 
will protect rare and declining species. They expressed concern that 
there are no clear mandates, concrete obligations, measurable 
objectives, or mandatory requirements to provide for diversity and that 
simply having a ``framework'' will not provide adequate protection to 
the species. The question was raised as to why plans would only 
``contribute to'' sustaining ecological systems and said the rule 
should require plans to ``sustain ecological systems.'' Some observed 
that under the proposed rule at section 219.10(b)(2), forest plans will 
no longer have to specifically address

[[Page 21495]]

wildlife needs unless the Forest Service determines that the 
``ecosystem diversity'' provisions of the plan need to be supplemented 
for a particular species. They also noted that FSH 1909.12, section 
43.21, states that a species approach is not required. Some respondents 
were concerned that a responsible official could decide that the very 
coarse filter of ecosystem diversity is sufficient for protecting all 
resident fish, wildlife, and plants, and some respondents said that no 
program of protecting species can be complete without a requirement for 
ensuring individual species' viability. A respondent noted that the 
definition of self-sustaining populations in the FSM is not clear, 
because the terms ``sufficiently abundant,'' ``appropriate population 
characteristics,'' and ``persistence over many generations'' are not 
defined.
    Response: Under the final rule and Agency directives, the 
responsible official would identify federally-listed threatened and 
endangered species, species-of-concern, and species-of-interest whose 
ranges include the plan area. The federally-listed threatened and 
endangered species are those species that are listed as threatened or 
endangered by the Department of the Interior, USFWS or the Department 
of Commerce, NOAA Fisheries. Under the Agency directives, species-of-
concern are those identified as proposed and candidate species pursuant 
to the ESA or those species ranked by NatureServe as needing action to 
prevent listing under ESA. Under the Agency directives, species-of-
interest are identified by working cooperatively with State fish and 
wildlife agencies, the USFWS, NatureServe, and other collaborators.
    The responsible official would then determine if the ecological 
conditions to support threatened and endangered species, species-of-
concern, and species-of-interest would be provided by the plan 
components for ecosystem diversity. If not, then additional species-
specific plan components would be included. Under the Agency 
directives, as part of an iterative process of developing plan 
components for ecosystem diversity and species diversity, several 
examinations, or analysis steps may be carried out. An initial analysis 
based on the current plan and species status may set the stage for the 
development of plan components for the revised plan. Such an evaluation 
helps identify the key risk factors that should be dealt with in plan 
components. Additionally, the evaluation would help determine what 
combinations of plan component will best contribute to sustaining 
species diversity. This additional evaluation would focus on the (1) 
Amount, quality, and distribution of habitat; (2) The dynamics of 
habitat over time; (3) Species distribution; (4) Known species 
locations; (5) Information on species population trends and dynamics if 
available; (6) Key biological interactions; (7) Other threats and 
limiting factors, such as wildland fire and other natural disturbances, 
roads, trails, off-road use, hunting, poaching, and other human 
disturbances. FSM 1920 and FSH 1909.12, chapter 40 contain further 
guidance on how to provide for ecological and species diversity and how 
to evaluate whether ecological conditions will provide for ``self-
sustaining populations'' of species-of-concern. Standards to maintain 
or improve ecological conditions, and to maintain or improve ecological 
conditions for specific species may be included in a land management 
plan.
    Comment: Species-of-Concern and Species-of-Interest. Some 
respondents commented that previous Forest Service planning rules had 
extended protection to species proposed for listing under the ESA, 
``candidate species'' under the ESA, State-listed species, and Forest 
Service ``sensitive species.'' Other respondents made the comment they 
found the species-of-concern and species-of-interest system to be 
confusing and that the criteria for inclusion did not address species 
needs adequately. Concerns were expressed about the time needed for 
State fish and wildlife agencies to interact with responsible officials 
to ensure that all wildlife management concerns and issues are 
adequately addressed. It was recommended a return to a modified 
management indicator species (MIS) system. Others commented that the 
Agency needs to clarify how it will determine the accuracy of species-
of-concern and species-of-interest, use scientifically credible third 
parties in these determinations, and address how species-specific 
provisions for those species that do not meet the species-of-concern 
and species-of-interest criteria will be provided. They stated that the 
species-of-concern criteria need to be reconsidered to be more pro-
active in managing wildlife populations to prevent ESA listing.
    Response: The concept of MIS was not included in the final rule 
because recent scientific evidence identified flaws in the MIS concept. 
The concept of MIS was that population trends for certain species that 
were monitored could represent trends for other species. Through time, 
this was found not to be the case. The Agency defined species-of-
concern and species-of-interest clearly. As identified in the Agency 
directives species-of-concern are those identified as proposed and 
candidate species under the ESA or those species ranked by NatureServe 
as needing action to prevent listing under the ESA. Under the final 
rule, the Forest Service directives identify the criteria for 
determining the species-of-concern and species-of-interest lists. The 
criteria include working with lists of species developed by objective 
and scientifically credible third parties, such as the USFWS, the 
National Marine Fisheries Service, and NatureServe. These lists of 
species are also to be determined by working collaboratively with the 
State fish and wildlife agencies and using some of their sources of 
information such as their State Wildlife Conservation Strategies (see 
FSH 1909.12, chapter 40). The primary purpose for identifying species-
of-concern is to put in place provisions that will contribute to 
keeping those species from being listed as threatened or endangered. 
The combined criteria for species-of-concern and species-of-interest 
should lead to identification of all species for which there are 
legitimate conservation concerns (FSH 1909.12, section 43.22). Species 
for which there are no conservation concerns should be adequately 
conserved through the ecosystem diversity approach.
    Comment: Retain the 2000 rule provisions for species viability. 
Some respondents preferred the explicit, mandatory provisions for 
species viability in the 2000 rule at section 219.20, because they 
believed it would help the Forest Service keep the wildlife that now 
exists, while the proposed language would lead to the disappearance of 
more species from the national forests.
    Response: The 2000 rule established a ``high likelihood of 
viability'' criterion. Although the 2000 rule provisions at section 
219.20 provided for considerations based on the suitability and 
capability of the specific land area, the provisions would also have 
established the most intensive analysis requirements over either the 
1982 rule or the proposed 2007 rule. The 2000 rule analysis 
requirements for ecosystem diversity and species diversity were 
estimated to be very costly and neither straightforward nor easy to 
carry out.
    Comment: Retain the 1982 rule provisions for species viability. 
Some respondents commented that given the high level of importance of 
national forest lands for wildlife, planning regulations should ensure 
that plans focus on maintaining the viability of

[[Page 21496]]

native fish, wildlife, and plants; and that the section 219.19 
provisions from the 1982 planning regulations should be retained. 
Conversely, other respondents agreed with the move away from the 
viability language in the 1982 rule stating that it was never realistic 
to provide for viability for all species on all lands given the many 
factors that influence viability, and that the focus should be on 
managing habitat as defined by desired conditions rather than on 
counting populations of each species. Some respondents commented that 
the viability requirement is a pillar of wildlife conservation in the 
United States. They provided many examples of the importance of 
wildlife habitat and the many local and international threats to 
wildlife.
    Some respondents noted that one of the reasons stated by the Forest 
Service for not including the species viability requirement in the 
proposed rule is that it is not always possible to maintain viability 
due to factors outside the Agency's control. However, some have 
responded that the Agency should still do everything it can to maintain 
viability for species on NFS lands. It was suggested that although the 
Forest Service should give a considerable amount of attention to those 
species that spend most of their time on NFS lands; perhaps the Agency 
could give those species relatively little attention to those species 
that spend a small amount of time on NFS lands.
    Response: As noted earlier, the NFMA requires guidelines that 
provide for diversity. It does not mandate viability. The Agency has 
learned that the requirement to maintain viable native fish and 
wildlife species populations without recognizing the capability of the 
land is not practicable due to influences on many populations that are 
beyond agency control. The Forest Service is dedicated to the principle 
that biological diversity is an essential and critical facet of our 
multiple use land management mandate. Therefore, the final rule 
requires a framework using the concepts of ecosystem diversity and 
species diversity. The issue of self-sustaining populations is dealt 
with in the current Forest Service Directive System (FSM 1921.76(c)). 
The directives are not as prescriptive as the viability requirement 
under the 1982 planning rule; however, the enhancement of conditions 
for fish and wildlife populations is the expected outcome of carrying 
out management consistent with plans developed under the final rule. 
The suggestion to give a considerable attention to those species that 
spend most of their time on NFS lands and to give less attention to 
those species that spend most of their time elsewhere is similar to the 
direction in the Forest Service directives developed to carry out the 
2005 planning rule. About self-sustaining populations FSM 1921.76c says 
that:

    Plan components for species-of-concern should provide 
appropriate ecological conditions to help avoid the need to list the 
species under the Endangered Species Act. Appropriate ecological 
conditions may include habitats that are an appropriate quality, 
distribution, and abundance to allow self-sustaining populations of 
the species to be well distributed and interactive, within the 
bounds of the life history, distribution, and natural population 
fluctuations of the species within the capability of the landscape 
and consistent with multiple-use objectives. A self-sustaining 
population is one that is sufficiently abundant and has appropriate 
population characteristics to provide for its persistence over many 
generations. The following points describe appropriate 
considerations for plan components based on the portion of the range 
of a species-of-concern that overlaps a plan area. When a plan area 
encompasses:
    1. The entire range of a species, the plan components should 
contribute appropriate ecological conditions for the species 
throughout that range.
    2. One or more naturally disjunct populations of a species, the 
plan should contribute appropriate ecological conditions that 
contribute to supporting each population over time.
    3. Only a part of a population, the plan should contribute 
appropriate ecological conditions to support that population.

Where environmental conditions needed to support a species-of-
concern have been significantly altered on NFS lands so that it is 
technically infeasible to provide appropriate ecological conditions 
that would contribute to supporting self-sustaining populations, the 
plan should contribute to the ecological conditions needed for self-
sustaining populations to the degree practicable.

    In addition, the 1982 planning rule at section 219.19 says:

    Fish and wildlife habitat shall be managed to maintain viable 
populations of existing native and desired non-native vertebrate 
species in the planning area. For planning purposes, a viable 
population shall be regarded as one which has the estimated numbers 
and distribution of reproductive individuals to insure its continued 
existence is well distributed in the planning area. In order to 
insure that viable populations will be maintained, habitat must be 
provided to support, at least, a minimum number of reproductive 
individuals and that habitat must be well distributed so that those 
individuals can interact with others in the planning area.

    Furthermore, the 1982 planning rule at section 219.19 contains the 
words ``shall be managed to maintain'' and the stringent ``ensure.'' 
These words have been interpreted by some people to be a 100 percent 
certainty that all species must remain viable at all times. The 100 
percent certainty interpretation is a technical impossibility given 
that the cause of some species decline is beyond the Forest Service's 
authority. For example, viability of some species on NFS lands might 
not be achievable because of species-specific distribution patterns 
(such as a species on the extreme and fluctuating edge of its natural 
range), because the reasons for species decline are due to factors 
outside the control of the Agency (such as habitat alteration in South 
America causing decline of some neotropical migrant birds), or because 
the land lacks the capacity to support species (such as drought 
affecting fish habitat).
    The Agency developed these directives to carry out the 2005 rule. 
The final rule provisions for ecosystem diversity and species diversity 
are identical to the 2005 rule. Therefore, there is not an urgent 
obligation to update the directives for ecosystem diversity and species 
diversity; however, because of public comment the Agency will take a 
comprehensive look a these directives and may update them to be more 
effective and efficient.
    Comment: Reasons for not retaining a viability requirement. Several 
respondents disagreed with the reasons for not establishing a viability 
requirement cited in the preamble for the proposed rule. While they 
recognized that the number of species having habitat or potential 
habitat is very large, they disagreed with this being justification to 
not include a viability requirement. It was suggested that the Agency 
could focus on species whose overall viability might be questionable 
and refine the list of species to those whose populations and habitat 
are most affected by changes occurring on NFS lands. Another respondent 
stated that as a minimum, the viable populations of proposed, 
endangered, threatened, and sensitive species (PETS) and management 
indicator species (MIS) should be managed for viability. Still another 
respondent suggested that instead of abandoning the viability 
requirement because it does not make sense to apply it to small 
national forests such as the Finger Lakes National Forest, those 
national forests should just be exempt from the requirement. 
Respondents also disagreed with the statement in the preamble to the 
proposed rule that focusing on viability would divert attention from an 
ecosystem approach. They responded that an understanding of both 
ecosystems and species is needed to understand the functioning of 
ecosystems. A focus on viability could

[[Page 21497]]

help maintain the existence of certain species that, if under an 
ecosystem approach, could be missed and might disappear from the area 
or not receive the attention needed to arrest population decline in 
that area. Further, some contended that providing for species viability 
maintains ecosystems by maintaining its parts.
    Response: The Agency is committed to the hierarchical and iterative 
approach to sustaining ecosystem diversity and species diversity. To do 
that, the Agency developed directives that focuses on those species 
where changes in plan components may be necessary to prevent listing 
under ESA and refines the list of species to focus on the species whose 
populations are most affected by changes in habitat on NFS lands. This 
focus is essentially in the criteria for selecting the federally listed 
threatened and endangered species, the species-of-concern, and the 
species-of-interest supplied by the existing Forest Service Directive 
System (FSM 1921.7 and FSH 1909.12, chapter 40). Similarly, the Agency 
directives deal with the concern expressed that some species ``might 
disappear from the area or not receive the attention needed to arrest 
population decline in that area.'' The term ``self-sustaining 
populations'' is used instead of the term viability in the current 
Forest Service Directive System (FSM 1921.76(c)). The Agency directive 
deals with the suggestion to just ``exempt'' certain national forests 
from a viability requirement by including direction in Agency 
directives to take into account capability of NFS lands (FSM 1921.76c). 
Lastly, the Department believes that providing appropriate ecological 
conditions for specific threatened and endangered species, species-of-
concern, and species-of-interest is superior to managing for PETS and 
MIS. Under the final rule, threatened and endangered species, species-
of-concern, and species-of-interest replace PETS and MIS. MIS concept 
from the 1982 rule has not been useful to the Agency as a framework for 
understanding the relationship of changes in wildlife habitat and 
population trends, because of the lack of ability to predict future 
trends. Once a plan has been revised under the final rule, sensitive 
species are no longer needed because species-of-concern and species-of-
interest replace them.
    Comment: Committee of Scientists recommendations. The comment was 
made that the proposed rule's sustainability provision represents a 
departure from the 1999 Committee of Scientists (COS) recommendations 
on how to implement the NFMA's diversity mandate. The COS recommended a 
three-tier approach, with the first prong involving an assessment of 
the composition, structure, and processes of the ecosystems; the second 
prong involving focusing on the viability of native species through the 
use of ``focal species,'' and the third prong involving species-level 
monitoring.
    Response: The report and recommendations from the 1999 Committee of 
Scientists were considered in the development of the proposed and final 
rule. The basic concepts developed by the COS on ecological 
sustainability have been carried forward. The procedures in the final 
rule and Forest Service directives still include looking at the 
composition, structure, and processes of the ecosystems; considering 
and evaluating the composition, structure, processes needed by a subset 
of the plant and animal kingdom (threatened and endangered species, 
species-of-concern, and species-of-interest), and the development of a 
monitoring program.
    Comment: Proposed rule ignores scientific data concerning 
sustainability. One respondent stated the proposed rule ignores 
scientific data concerning what uses are sustainable, thereby setting 
the stage for long-term destabilization of ecosystems.
    Response: The final rule at section 219.7(a)(2)(iv) does not 
determine what uses are suitable for any specific area of land. The 
responsible official will identify in the plan areas of land as 
generally suitable for a variety of uses. Moreover, the final decisions 
on actual uses of specific areas would not be made until project and 
activity decisions (sec. 219.7(a)(2)(iv). The responsible official will 
take into account the best available science and document that science 
was appropriately interpreted and applied in making plan decisions 
(sec. 219.11). Various means such as independent peer review, science 
advisory boards, or other review methods may be used to evaluate the 
consideration of science under any alternative. The Department believes 
that these requirements of the final rule, along with the collaborative 
process, would assure that scientific knowledge is appropriately 
considered throughout the planning process.

Section 219.11--Role of Science in Planning

    This section of the final rule requires the responsible official to 
take into account the best available science. The words ``take into 
account'' express that formal science is just one source of information 
for the responsible official and only one aspect of decisionmaking. The 
Department retains the 2007 proposed rule wording in the final rule, 
except the Department removed two requirements from the final rule. The 
Department removed the requirements that the responsible official must 
(1) evaluate and disclose substantial uncertainties in that science; 
and (2) evaluate and disclose substantial risks associated with plan 
components based on that science. The Department removed these two 
requirements from the rule because detailed instructions for dealing 
with uncertainties associated with science information and risks in 
plan components are currently in the Forest Service directives (FSM 
1921.8, FSH 1909.12, chapter 40).
    The responsible official may use independent peer reviews, science 
advisory boards, or other review methods to evaluate science used in 
the planning process. Forest Service directives provide specific 
procedures for conducting science reviews (FSH 1909.12, chapter 40).
    Comment: Consistency with best available science. Some respondents 
wanted the rule to retain 2000 rule language requiring responsible 
officials to make decisions that are consistent with the best available 
science. They felt that the proposed rule would allow scientific 
knowledge or recommendations to be overridden. Other respondents agreed 
with language requiring that the responsible official take into account 
the best available science, as science itself is constantly changing 
and subject to controversy. They stated that a requirement for 
consistency would be unwieldy, ambiguous, and lead to increased 
litigation.
    Several respondents were concerned about a reduced emphasis on 
science, citing the absence of a requirement to use peer reviewed 
science or science advisory boards.
    Response: The Department is not reducing the emphasis on science. 
The Department is committed to taking into account the best available 
science in developing plans, plan amendments, and plan revisions as 
well as documenting the consideration of science information. However, 
the Department removed these two requirements from the rule because 
detailed instructions for dealing with uncertainties associated with 
science information and risks in plan components are currently in the 
Forest Service directives (FSM 1921.8, FSH 1909.12, chapter 40).
    Although a significant source of information for the responsible 
official, science would be only one aspect of decisionmaking. When 
making decisions, the responsible official must

[[Page 21498]]

also consider public input, competing use demands, budget projections 
and many other factors. Under the final rule, the responsible official 
may use independent peer reviews, science advisory boards, or other 
review methods to evaluate science used in the planning process. Forest 
Service directives specify specific procedures for conducting science 
reviews at FSM 1921.8 and FSH 1909.12, chapter 40. The Agency believes 
these requirements of the rule, along with the collaborative process, 
will assure that the best available scientific knowledge is 
appropriately considered throughout the planning process.
    Comment: Consideration of traditional knowledge. One respondent was 
concerned about the strong focus on science. While acknowledging that 
science is essential for Forest Service planning, traditional 
ecological knowledge also has much to offer and is not included in the 
rule.
    Response: Although a significant source of information for the 
responsible official, science is only one aspect of decisionmaking. 
Other factors including traditional ecological knowledge need to be 
considered in the comprehensive evaluations and the formulation of plan 
components.
    Comment: Term ``best available science.'' A respondent was 
concerned about the term ``best available science'' and urged adoption 
of another term or defining this term in the definitions section of the 
rule.
    Response: Under the final planning rule there is no firm, 
established definition on what is best available science. The current 
Forest Service directives at FSM 1921.8 and FSH 1909.12 chapter 40 use 
this term. It is also important to realize there can be more than one 
source for science or more than one interpretation of the science. What 
constitutes the best available science might vary over time and across 
scientific disciplines. The best available science is a suite of 
information and the suite of information does not dictate that 
something can only be done one way. Furthermore, under the final rule 
the responsible official must take this suite of information into 
account in a way that appropriately interprets and applies the 
information applicable to the specific situation. A four step process 
is described in the existing directives FSM 1921.81. This process 
includes gathering quality science information, assessing the 
information for pertinence, synthesizing the information for 
application to planning, and applying the synthesis in developing the 
plan components. When the four step process is followed and an 
appropriate review is conducted, the best available science should be 
taken into account and properly influence the plan components.
    Comment: Public input into the use of scientific information. One 
respondent was concerned that scientists consider input from the public 
and the Agency provides scientific information to the public so that 
all the facts and information are available during decisionmaking. 
Another respondent was concerned the rule needed to provide mechanisms 
for the consideration and incorporation of sound science at all levels 
and stages of the planning process. Another stated the rule leaves out 
the voice of scientists in making plan decisions.
    Response: Under the final rule, the Department expects the 
responsible official to share scientific information with the public 
throughout the process. Under section 219.9(a), the responsible 
official would involve the public in developing and updating the 
comprehensive evaluation report, establishing the components of the 
plan, and designing the monitoring program. Any interested scientists 
can be involved at any phase of public involvement. It is also expected 
that responsible officials would seek out quality science information 
applicable to the issues being analyzed. Under section 219.11, the 
responsible official would document how best available science was 
taken into account and that science was appropriately interpreted and 
applied. This could be done with the use of independent peer review, a 
science advisory board, or other methods.

Section 219.12--Suitable Uses and Provisions Required by NFMA

    This section of the final rule includes provisions for identifying 
suitable land uses, lands not suitable for timber production, lands 
suited for timber production, plan provisions for resource management, 
and requirements for the Forest Service Directive System to include 
more NFMA requirements. The Department modified the 2007 proposed rule 
wording in the final rule.
    In paragraph (a)(1) of this section, in the discussion of 
identifying suitable uses, the Department added wording to acknowledge 
that the responsible official may identify an area as generally 
unsuitable for various uses. The Department added these words to avoid 
confusion. Some public comments indicated that identification of an 
area as generally not suitable for uses would be perceived as a final 
decision. Therefore, the Department clarified its intent. The 
Department views this as outgrowth of the proposed rule's suitability 
provisions and not a substantive change.
    Furthermore, in paragraph (a)(1) of this section the Department 
modified wording about project and decisionmaking to say that the plan 
approval document may include project and activity decisions when the 
analysis and plan approval documents are prepared in accord with Forest 
Service NEPA procedures. The Department made this change because some 
Agency managers were confused by the previous wording that if 
authorization of a specific use is needed, responsible officials may 
approve a specific use through project and activity decisionmaking. As 
this change clarifies the Department's intent, this is not a 
substantive change.
    In paragraph (a)(2) of this section, in the discussion of 
identifying lands not suitable for timber production, the Department 
added wording to explicitly require the responsible official to 
identify lands as not suitable for timber production if (1) the 
technology is not available for conducting timber harvest without 
causing irreversible damage to soil, slope, or watershed conditions or 
substantial and permanent impairment of the productivity of the land; 
(2) there is no reasonable assurance that such lands can be adequately 
restocked within 5 years after final regeneration harvest. The 
Department added these requirements to the final rule to be responsive 
to public concerns expressed on this issue. This is not a substantive 
change because the proposed rule relied on the Forest Service Directive 
System as a means to accomplish this requirement and because this was 
considered in the range of alternatives in the EIS.
    In response to public comment, the Department added new paragraphs 
at (a)(3), (a)(4), (b)(2), (b)(3), (b)(4), (b)(5), (b)(6), and (b)(7) 
of this section to further discuss lands suitable for timber 
production, other lands where trees may be harvested, and plan 
provisions for resource management. The Department received several 
comments arguing that this content is required by NFMA to be in the 
text of the planning rule. Although the Department does not agree with 
this legal interpretation of NFMA, the Department has elected to move 
content into the rule from the Forest Service Directives System and 
alternative E of the EIS to eliminate this potential controversy. 
Furthermore, these added paragraphs are not a substantive change 
because the proposed rule relied on the Forest Service Directive System 
as a means to accomplish these NFMA requirements

[[Page 21499]]

and because this was considered in the range of alternatives in the 
EIS.
    In response to public comment, the Department added a new paragraph 
(a)(3) in this section to direct the responsible official to consider 
physical, ecological, social, economic, and other factors when 
identifying lands suitable for timber production. In addition, the 
Department added wording to discuss the requirement of NFMA to review 
lands not suited for timber production every 10 years (16 U.S.C. 
1604(k)).
    In response to public comment, the Department added a new paragraph 
(a)(4) in this section to clarify and provide more direction about 
salvage sales or other harvest needed for multiple-use objectives other 
than timber production that may take place on areas that are not 
suitable for timber production as previously discussed at paragraph 
(a)(2)(ii) of this section.
    In response to public comment, the Department added a new paragraph 
(b) in this section that says the plan should include provisions for 
resource management. The verb should is used to recognize that 
extenuating circumstances are likely to occur at times for these 
provisions, for example, national forests or grasslands without timber 
programs would not need to deal with the timber management provisions. 
In paragraph (b) of this section, the Department added wording to deal 
with the four conditions related to timber harvest at 16 U.S.C. 
1604(g)(3)(E) and the five conditions related to even-aged harvest at 
16 U.S.C. 1604(g)(3)(F) in response to comments. The wording requires 
that these plan provisions deal with protection of bodies of water, 
esthetics, fish, recreation, soil, watershed, wildlife, 
interdisciplinary review, size limits for cutting of areas in one 
harvest operation, and the regeneration of the timber resource. 
Furthermore, paragraph (b)(5) in this section requires that the 
harvesting system used is not selected primarily because it will give 
the greatest dollar return or the greatest unit output of timber.
    The provision requiring Forest Service directives deal with 
additional NFMA requirements of the 2007 proposed rule has been 
redesignated at paragraph (c) of this section. This section requires 
the directives discuss limitations on timber removal (16 U.S.C. 1611) 
and culmination of mean annual increment (CMAI) of growth. The 
Department added the provisions about culmination of mean annual 
increment of growth to respond to public comment. Based on the use of 
sound silvicultural practices, the Department specifies in the final 
rule that this requirement applies to regeneration harvest of even-aged 
stands on lands identified as suitable for timber production and where 
timber production is a management purpose for the harvest. The 
Department added this sentence about CMAI to clarify that based on the 
use of sound silvicultural practices, MAI and CMAI are not applicable 
to intermediate harvests (such as thinning or stand improvement 
measures) and uneven-aged management. In addition, they are not 
applicable to salvage or sanitation harvesting of timber stands that 
are substantially damaged by fire, windthrow, or other catastrophe, or 
which are in imminent danger from insect or disease attack. Further 
discussion of CMAI is supplied in the Forest Service directives because 
NFMA does not require this guidance to be in the rule itself.
    Comment: General suitability of NFS land for multiple uses. A 
respondent noted the proposed rule at section 219.12(a)(1) that 
national forests are generally suitable for a variety of multiple uses 
appeared to represent a substantial change in forest policy that would 
open all lands to all uses unless a forest manager specifically limits 
uses in certain areas. The respondent was concerned that this policy 
would jeopardize existing closures where certain uses are prohibited 
unless designated open.
    Response: The final rule allows a responsible official to identify 
lands that are generally suitable for various uses and lands that are 
generally unsuited for various uses. National Forest System lands are 
generally open to uses if consistent with the land management plan, 
subject to consideration under appropriate NEPA procedures and other 
applicable laws, regulations, and policies. This approach is not a 
change in agency policy and would not affect existing closures that 
prohibit a use for specific areas.
    Comment: Protection of soil and water resources during timber 
harvest should be addressed. A number of respondents suggested that 
more guidance limiting harvest activities should be in the rule, 
specifically that lands should be identified as unsuited for timber 
harvest where soil and watershed conditions would be irreversibly 
damaged. It was also suggested that specific soil and water protection 
requirements from the 1982 rule or the 2000 rule should be in the 2007 
rule.
    Response: The final rule and supporting directives meet the 
requirements of NFMA timber management requirements of 16 U.S.C. 
1604(g) including provisions for protection of soil, watershed, and 
other resources during timber harvest (sec. 219.12(b)). NFMA 
requirements concerning guidelines for timber harvest are in section 
219.12(b), including provisions for protection of soil, watershed, and 
other resources during timber harvest. The responsible official is 
required to identify as not suitable for timber production lands where 
the technology is not available for conducting timber harvest without 
causing irreversible damage to soil, slope, or watershed conditions or 
substantial and permanent impairment of the productivity of the land. 
It also requires that lands be identified as not suitable for timber 
production if there is no reasonable assurance that such lands can be 
adequately restocked within 5 years after final regeneration harvest.
    Comment: Limitation on timber harvest. Several respondents 
suggested that the rule include limitations on timber harvest like 
those prior rules. One suggestion was to limit harvest to the estimated 
amount of timber that can be sold annually in perpetuity on a 
sustained-yield basis, with exceptions for situations where areas have 
been substantially affected by fire, wind, or other events or there is 
imminent threat from insect or disease. Additional suggestions were 
made that this section should reflect harvest limitations based on 
ecological, social, and economic sustainability requirements from the 
2000 rule. It was also suggested that the timber resource land 
suitability requirements include the considerations from section 219.14 
of the 1982 rule. These would address such things as economic costs and 
benefits and other multiple-use objectives.
    Response: Under the final rule, responsible officials must limit 
the sale of timber from each national forest to a quantity equal to or 
less than a quantity that can be removed for such forest annually in 
perpetuity on a sustained-yield basis (16 U.S.C. 1611). The rule relies 
on the Forest Service Directive System for provisions on this issue. 
The responsible official would take into account all elements of 
sustainability (social, economic, and ecological) and involve the 
public in analysis regarding timber suitability and timber harvest 
limitations during the planning process. The responsible official would 
evaluate relevant economic and social conditions and trends as 
appropriate during the planning process. More detail for social and 
economic analysis is provided in Forest Service Directives System.
    Comment: Force and effect of determinations that lands are 
unsuitable for uses. A determination of lands unsuitable for logging or 
other

[[Page 21500]]

development should have the force of a standard, not a guideline.
    Response: Under the final rule, a project with the primary purpose 
of timber production may only occur in an area identified as suitable 
for that use (16 U.S.C. 1604(k)). However, timber harvest may be used 
on such lands as a tool to achieve other multiple-use purposes. 
Examples of the reasons may include, but are not limited to (1) 
maintaining or recruiting mature forest characteristics in areas where 
final regeneration of a stand is not planned, (2) experimental forests, 
(3) restoring meadow or rangeland ecosystems being replaced by forest 
succession, (4) cutting trees to promote the safety of forest users, 
and (5) removal of understory trees to reduce hazardous ladder fuels in 
frequent fire return interval forests. For suitability of areas except 
for timber production, consistency of a project or activity should be 
evaluated in one of two ways: (1) The project or activity is a use 
identified in the plan as suitable for the location where the project 
or activity is to occur. (2) The project or activity is not a use 
identified in the plan as suitable for the location, but the 
responsible official documents the reasons the use is appropriate for 
that location.
    Comment: Provisions for timber harvest on land classified as 
unsuitable for timber production. Some respondents stated that salvage 
sales or other harvest needed for multiple-use objectives other than 
timber production should not be allowed on lands unsuitable for timber 
production, because no sideboards have been set in regulation that 
constrain how this would be done or what trade-offs would or would not 
be acceptable.
    Response: Timber harvest for salvage sales or sales necessitated to 
protect other multiple-uses is authorized by the NFMA at 16 U.S.C. 
1604(k). The NFMA sets forth sideboards that apply to timber harvest 
whatever its purpose (16 U.S.C. 1604(g)(3)). Under the final rule, the 
responsible official may only authorize timber harvest to achieve other 
multiple-use purposes if such a project is consistent with the 
protection of soil, watershed, fish, wildlife, recreation, and 
aesthetic resources.

Section 219.13--Objections to Plans, Plan Amendments, or Plan Revisions

    This section establishes the objection process by which the public 
can challenge plans, plan revisions, or plan amendments. The Department 
retains the 2007 proposed rule wording in the final rule.
    The Committee of Scientists, in its 1999 report, recommended that 
the Forest Service seek to harmonize its administrative appeal process 
with those of other Federal agencies. The Committee of Scientists said 
a pre-decisional process would encourage internal Forest Service 
discussion, encourage multi-agency collaboration, and encourage public 
interest groups to collaborate and work out differences. Therefore, to 
be more consistent with the Bureau of Land Management (BLM) and to 
improve public participation efforts, the Department is adopting the 
pre-decisional objection process (sec. 219.13) to replace the appeals 
process. The objection process complements the public participation 
process because the objectors and the reviewing officer can 
collaboratively work through concerns before a responsible official 
approves a plan.
    The 30-day objection period specified in this final rule is the 
same amount of time provided in the BLM protest process. The final rule 
does not specify a time limit for agency responses; the final rule has 
adopted the BLM requirement that the reviewing officer promptly render 
a decision on the objection. It is in the interest of the Agency to 
render a decision promptly to move forward.
    Because Federal agencies have other avenues for working together to 
resolve concerns, under the final rule Federal entities are not able to 
file objections. This exclusion of Federal agencies is a long-standing 
procedure of Forest Service administrative appeal provisions at 36 CFR 
parts 215, 217, and 251, subpart C. The Forest Service is required to 
involve other Federal agencies, at section 219.9(a)(2) of the final 
rule. The objection process is intended primarily for state and local 
governments, tribes, and members of the public. The objection process 
is not suitable to resolve concerns between sister agencies in the 
executive branch. The Forest Service anticipates that other agencies 
will be able to resolve most planning concerns informally. Where it is 
anticipated that there may be concerns that are not easily resolved by 
planners and other agency personnel, various techniques such as 
establishments of memorandums of understanding or local working 
agreements may be used. Some agencies also have regulatory authority; 
for example, EPA has review authority pursuant to section 309 of the 
Clean Air Act. These techniques and authorities are successfully being 
used now and will continue to be used in the future.
    Comment: Inherent benefits of a post-decisional appeal process. A 
respondent said the Forest Service failed to consider the inherent 
value of a post decisional appeal process. One value is that it 
addresses a need for citizens to air legitimate objections to final 
decisions in forest plans so that litigation remains a last option. The 
respondent cited studies of the Agency's appeal process for projects 
that concluded ``most appeals appear to be justified,'' and that the 
program has been ``an internal mechanism for clarifying the legal 
requirements and for testing the soundness of decisions and the 
appropriateness of current policies and procedures.'' Another 
respondent noted that only a post-decisional appeal process provides 
the public a way of objecting based on a review of the actual decision 
that has been made. A respondent said the current appeals process has a 
proven track record of resolving conflicts, encouraging collaboration, 
and preventing unnecessary litigation. One respondent noted there is 
nothing that prevents a deciding officer from seeking objections before 
issuing a decision, then also receiving post-decisional appeals. The 
appeal and objection processes are compatible, and it is essential and 
efficient to keep the appeal process, because the review of contentious 
decisions by higher level officials before contention leads to 
litigation.
    Response: The Agency believes a predecisional objections process in 
the final rule will be a natural continuation of the collaborative 
planning process in a way that participants have opportunities to 
discuss the proposed decision, consider options, and air concerns and 
opinions throughout the process. The Agency believes objections are a 
more effective mechanism for testing soundness of decisions. 
Consistency with law and policy can still be tested, contentious issues 
discussed, and litigation avoided. The Agency believes that having both 
a predecisional objection process and a post decisional appeals process 
would be redundant. The objection process is expected to resolve many 
potential conflicts by encouraging resolution before a plan, plan 
amendment, or plan revision is approved.
    Under the 36 CFR part 217 appeal process, the Agency and the public 
expend significant human and financial resources in fulfillment of 
procedural requirements. Often an appeal leads to a polarized 
relationship because there is no real incentive to address natural 
resource issues and there is a squandering of human and financial 
capital, often without long-lasting solutions to problems. With a 
predecisional objection process, the responsible official, the 
reviewing officer, and the objector have the

[[Page 21501]]

opportunity to seek reasonable solutions to conflicting views of plan 
components before a responsible official approves a plan, plan 
amendment, or plan revision. The objection process allows discretion 
for joint problem solving to resolve issues. This approach fits well 
with a collaborative approach to planning.
    In its 1999 report, the COS identified potential problems 
associated with the post-decisional appeals process. These problems 
included isolating agency decisionmakers from one another just at the 
time when internal discussion about the upcoming plan decision might be 
useful, inhibiting multi-agency collaboration, and giving mixed and 
inconsistent incentives for involvement of interest groups. The COS 
recommended that in line with a collaborative planning process, the 
Agency should consider an approach that minimizes incentives to appeal 
plan decisions. The committee recommended that if the appeals process 
proves problematic, influencing parties to disregard their agreements 
or to leave the table before agreements are reached, and then the 
Agency might consider shifting to a predecisional process similar to 
that used by the U.S. Department of the Interior, Bureau of Land 
Management (BLM). Having considered these recommendations, and the 
experience of the Agency with the post decisional appeals process, the 
Agency believes the objection process will provide a more consistent 
process among agencies and further a collaborative approach to 
planning.
    Comment: Time allowed for filing objections and responding to 
objections. Several respondents commented that the 30-day period for 
filing objections is not adequate to review the plan and supporting 
documentation and prepare an objection. Some respondents recommended 
that the rule allow at least 60 days for filing objections. Some also 
recommended that the rule include a specific time frame for making 
decisions on objections. One respondent noted that it is a double 
standard for having a time limit for filing objections, but none for 
responding to them. Another respondent had the impression that the 30-
day objection period replaced the 3-month public review and comment 
period required by the NFMA.
    Response: Under the final rule, the Agency would use the objection 
process to resolve many potential conflicts by encouraging resolution 
before a plan, plan amendment, or plan revision is approved. The 30-day 
objection period specified in these alternatives is the same amount of 
time provided in the BLM protest process. The Agency does not specify a 
time limit for agency responses. It is in the interest of all parties 
for the reviewing officer to promptly render a decision on the 
objection, but a specific time limit could potentially shortcut joint 
discussions among the parties aimed at resolving issues raised in the 
objections. The Agency believes that 30 days is adequate for developing 
and filing an objection, considering that objections would follow a 
collaborative public participation process including a 90-day comment 
period on the proposed plan, plan amendment, or plan revision found at 
section 219.9(b)(1)(ii).
    Comment: Designating a lead objector and content of objections. A 
respondent said the objection process is too burdensome, because it 
requires someone be designated the lead objector, who is the only 
person the Forest Service will contact or talk with. The process limits 
opportunities for resolution because it does not require a notice of 
all objections received and limits who can request meetings. The 
process places too stringent requirements on the content of objections, 
mere disagreement with the decisions should be adequate basis for an 
objection.
    Response: Section 219.13(b)(1) of the final rule calls for a 
designated lead objector when an objection is filed by more than one 
person. Under the final rule, a person may object if they believe a 
policy has been violated, but a person is free to object simply because 
they disagree with the decision. The requirements of section 219.13(b) 
allow the reviewing officer to know why an objector objects as well as 
what the objector recommends for change. About the lead objector, the 
final rule says ``The reviewing officer may communicate directly with 
the lead objector and is not required to notify the other listed 
objectors of the objection response or any other written correspondence 
related to the single objection.'' The procedures for communication 
through the designated lead objector are a reasonable accommodation to 
effectively work with a multi-party objection and quickly resolve 
issues. However, the reviewing officer may meet with all objectors if 
the reviewing officer desires. The reviewing officer has the discretion 
to manage the process.
    Comment: Participation in objections by interested parties. Some 
respondents recommended that the rule include provisions for 
participation in the objections process by parties who did not file an 
objection, but who participated in the planning process and may be 
affected by the response to objections filed by others.
    Response: Under the final rule, the reviewing officer is not 
precluded from involving parties in addition to the objector(s) when 
making a response to the objection. Interested individuals and 
organizations could also object to plans, plan amendments, or plan 
revisions.
    Comment: Decisions by responsible officials at a higher level than 
the Chief. Per section 219.13(a)(2) of the proposed rule, there is no 
opportunity for administrative review (objections) if the plan decision 
is made by a Department official at a level higher than the Chief of 
the Forest Service. One respondent recommended that officials higher 
than the Chief should not be allowed to make plan decisions, because 
the objection process should be available to allow for resolution of 
disagreements at the local level rather than through the courts.
    Response: The final rule retains this exception at section 
219.13(a)(2) to opportunities for objecting to a plan. There is no 
higher level to object to when the decision is made at a level higher 
than the Forest Service Chief. It is anticipated that plan decisions 
will rarely be made at a level above the regional forester.

Section 219.14--Effective Dates and Transition

    This section specifies when a plan, plan amendment, or plan 
revision will take effect as well as how responsible officials may 
modify ongoing planning efforts to conform to the requirements of the 
final rule. For clarity, the Department modified this section from the 
transition wording in the 2007 proposed rule. The final rule sets up 
the time requirement for EMS establishment in section 219.5; therefore, 
the discussion of EMS establishment has been removed from this section.
    In paragraph (a) of this section, the Department retains wording 
about effective dates from the 2007 proposed rule. In paragraph (b) of 
this section, the Department retains the definition of initiation from 
the 2007 proposed rule. In paragraph (b)(1) of this section, the 
Department retains the requirement of the proposed rule that plan 
development and plan revisions initiated after the effective date of 
the final rule must conform to the requirements of this subpart.
    In paragraph (b)(2) of this section, the Department discusses the 
requirements of plan amendments during transition under the final rule. 
This section combined discussions from the proposed rule in paragraph 
(d)(2), paragraph (d)(3), and (e)(2) of this section in the proposed 
rule. As in the proposed rule, for 3 years the responsible official may 
amend plans

[[Page 21502]]

under the 1982 rule procedures or under the final rule procedures. As 
in the proposed rule, all plan amendments initiated after 3 years must 
conform to the final rule. Plan amendments initiated prior to that 3 
year deadline may use the 1982 procedures.
    The Department added a new provision in paragraph (b)(2) in this 
section that allows responsible officials to use the objections process 
of the final rule or the appeal procedures if they amend under the 1982 
procedures. In the proposed rule, plan amendments previously initiated 
were permitted to use either administrative review process. This 
addition permits plan amendments using the 1982 rule procedures a 
choice. Furthermore, this is not a substantive change.
    In paragraph (b)(3) of this section, the Department discusses plan 
development, plan amendments, or plan revisions initiated before this 
rule. This is a modification of paragraph (e) of this section in the 
proposed rule. To deal with plan revisions efforts that relied on the 
2005 rule, the Department added a provision at paragraph (b)(3)(ii) in 
this section that the responsible official is not required to start 
over on a finding that process conforms to the final rule.
    The Department removed paragraph (f) from this section about 
management indicator species (MIS) from the final rule, because the 
revised paragraph (b)(4) of this section eliminates the need to discuss 
MIS as a separate topic. In paragraph (b)(4) of this section, the 
Department discusses plans developed, amended, or revised using the 
1982 rule. For those national forests and grasslands, the 1982 rule is 
without effect. Therefore, no obligations remain from the 1982 rule 
including MIS, except those that are specifically in the plan. There 
has been uncertainty about the application of provisions of the 1982 
rule, particularly with respect to obligations about MIS (69 FR 58055, 
Sept. 29, 2004). For such plans, species obligations may be met by 
considering data and analysis relating to habitat unless the plan 
specifically requires population monitoring or population surveys. The 
appropriate scale for species monitoring is the plan area, however, 
plan provisions define species obligations. There has been some 
confusion about the intent of paragraph (f) in this section of the 
proposed rule. The Department believes this change in wording at 
revised paragraph (b)(4) is not a substantive change but clarifies the 
Department's intent.
    Comment: Management indicator species (MIS) population monitoring. 
Some respondents expressed concern that monitoring of habitat 
conditions may not reflect population trends in a timely enough manner 
and stated that baseline data is needed if sampling programs are to be 
used for trend analysis. Other respondents stated that provisions of 
the proposed rule allowing monitoring of habitat rather than 
populations, using a range of methods, and specifying that MIS 
monitoring is not required for individual projects conflicts with the 
MIS case law developed under the 1982 rule and may not survive legal 
challenge. Other respondents urged that wildlife monitoring 
requirements not be optional (as was proposed in sec. 219.14(f)), 
otherwise the forest managers and public would have no way of knowing 
whether wildlife goals have been met.
    Response: Management indicator species monitoring is not discussed 
in the final rule. The 1982 rule is not in effect (sec. 219.14(b)(4)). 
No obligations remain from that regulation (including MIS), except 
those that are specifically in a plan. Considerable uncertainty has 
arisen in the past, specifically due to conflicting court decisions 
related to MIS monitoring. The responsible official may use information 
on habitat unless the plan specifically requires population monitoring 
or population surveys in meeting any species monitoring obligations of 
the plan. Site-specific monitoring or surveying of a proposed project 
or activity area is not required, unless required by the plan. Any 
monitoring would likely be carried out at the scale most appropriate to 
the species within the national forest, grassland, prairie, or other 
administratively comparable unit. The Agency does not dictate a 
specific required approach to species monitoring under plans. Rather, 
the responsible official is allowed flexibility to carry out monitoring 
approaches that may include either habitat or population monitoring and 
a variety of sampling programs to estimate or approximate population 
trends for species. The need for timely feedback on trends and the 
existence of baseline data may be a consideration as the responsible 
official adopts a specific monitoring protocol.
    Comment: Transition--when existing plans come under the new rule. A 
respondent did not support allowing forests to come under the new rule 
as soon as they established an EMS. This respondent said that a plan 
should conform to the rule it was developed under until a new plan had 
been prepared and approved.
    Response: The final rule provides a process for developing, 
revising, or amending plans only. Except as specifically provided, none 
of the requirements of this final rule, apply to projects or 
activities. Since all current plans were developed under the 1982 rule, 
the respondent is actually recommending that the 1982 rule remain in 
effect until a plan is revised under the final rule. However, there is 
nothing to ``conform to'' unless one of these planning actions is 
initiated, and the Department sees no advantage to delaying use of the 
new rule. The 1982 rule is not in effect. It is the Agency position 
that requirements for project and activity planning should be set in 
the Agency directives, not in a rule. The requirement for establishing 
an EMS as a precondition to approving plan development, plan 
amendments, or plan revisions has been removed from the final rule.
    Comment: Continuing plan revisions initiated under the 2005 rule. 
One respondent urged that the rule include a specific provision 
allowing units that had begun revision under the 2005 rule to use the 
work and material prepared to date, because forcing these units to 
start the process over again would be a significant waste of agency 
resources and would frustrate the local community because their past 
efforts would be ignored.
    Response: The final rule requires the responsible official to make 
a finding that the plan, plan amendment, or plan revision process 
conforms to the requirements of the planning rule (sec. 219.14(b)(3)). 
The final rule discusses the transition for plan development, 
amendments, or revisions previously initiated, and allows for these 
planning processes to build on the work done to date rather than 
requiring that the responsible official to start over. The Agency 
believes that, although some adjustments may be needed, the public 
involvement, analysis, and documentation developed thus far through 
planning efforts conducted under the 2005 rule can and should be used 
as these plans are completed under the final rule.

Section 219.15--Severability

    This section explains that it is the Department's intent that the 
individual provisions of this rule be severable from each other. The 
Department retains the 2007 proposed rule wording in the final rule.

Section 219.16--Definitions

    This section sets out and defines the special terms used in the 
final rule. Additional discussion in response to comments about 
definitions is found in Appendix G of the EIS. The Department added two 
terms to the definitions section of the final rule. These additional 
terms are ``Alaska Native

[[Page 21503]]

Corporations,'' and ``timber harvest.'' The Alaska Native Corporation 
addition is based on public comment from those entities pointing out 
that the proposed rule did not include them. The addition of the timber 
harvest definition is needed to deal with the additional timber 
provisions added at section 219.12 in response to comments on that 
section. Based on public comment, the definition of the term ``adaptive 
management'' has been modified to agree with the definition used in the 
ongoing NEPA rule-making. The Department changed the definition of 
environmental management systems (EMS) to let EMS be multi-unit, 
regional, or national in scope.
    The Department removed the definition of species from section 
219.16 for two reasons: (1) During review of the proposed rule other 
agencies pointed out that there may be confusion between statutes and 
our proposed definition for species; (2) the definition of species-of-
concern in the final rule demonstrates the Department's intent to deal 
with the species for which management actions may be necessary to 
prevent listing under the Endangered Species Act.

Compliance With the Endangered Species Act of 1973, as Amended

    As part of the environmental analysis, a biological assessment was 
prepared for threatened, endangered, and proposed species and 
designated and proposed critical habitat for the 2008 final land 
management planning rule. The assessment concluded that the planning 
rule will have no effect to these species as it establishes the 
procedures for land management planning and does not authorize, fund, 
permit, or carry out any habitat or resource disturbing activities. The 
rule does not affect, modify, mitigate, or reduce the requirement for 
the Forest Service to conference or consult on projects or activities 
that it funds, permits, or carries out that may affect threatened, 
endangered, or proposed species or their designated or proposed 
critical habitat. Section seven consultation will be conducted for 
actions authorized, funded, or carried out by the Forest Service as 
required by regulation or policy (50 CFR 402.01, FSM 2671.45). Based on 
this assessment it was determined that the final rule, in itself, will 
have no effect on threatened, endangered, or proposed species or to 
designated or proposed critical habitat. Since initiating the 
development of the current proposed planning rule, the Forest Service 
has consulted with NOAA Fisheries and USFWS to discuss the programmatic 
nature of the planning rule, to explain the Forest Service's tiered 
decision making framework (regulation, land management plan, and 
project) and to consider the potential of the 2008 planning rule to 
affect threatened, endangered and proposed species, and designated and 
proposed critical habitat. We concluded this consultation by reaching a 
``no effect'' determination. The Forest Service was aware that USFWS 
and NOAA Fisheries had agreed with the Forest Service's similar ``no 
effect'' determination for the 2000 planning rule. However, the Forest 
Service ultimately concluded that, because our ``no effect'' 
determination fulfilled the consultation requirement, it was not 
necessary to submit this biological assessment to the NOAA Fisheries or 
USFWS seeking agreement with our finding. Copies of the biological 
assessment and appendices are in the analysis record for this rule and 
are available on request.

Regulatory Certifications

Regulatory Impact

    The Agency reviewed this rule under U.S. Department of Agriculture 
(Department) procedures and Executive Order 12866 issued September 30, 
1993, as amended by Executive Order 13422 on regulatory planning and 
review and the major rule provisions of the Small Business Regulatory 
Enforcement and Fairness Act (5 U.S.C. 800). The Agency has determined 
this rule is not an economically significant rule. This rule will not 
have an annual effect of $100 million or more on the economy nor 
adversely affect productivity, competition, jobs, the environment, 
public health or safety, nor State or local governments. This rule will 
neither interfere with an action taken or planned by another agency nor 
raise new legal or policy issues. Finally, this rule will not alter the 
budgetary impact of entitlements, grants, user fees, or loan programs 
or the rights and obligations of recipients of such programs. However, 
because of the extensive interest in NFS planning and decisionmaking, 
this rule has been designated as significant and, therefore, is subject 
to Office of Management and Budget review under Executive Order 13422.
    An analysis was conducted to compare the costs and benefits of 
carrying out the rule to the baseline--the 2000 rule. This analysis is 
posted on the World Wide Web/Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fs.fed.us/emc/nfma/2008_planning_rule.html, along with other documents associated with 
this rule. The 2000 rule was used as the baseline because it is the no 
action alternative (alternative B).
    Quantitative differences between this rule, and the other 
alternatives were also estimated. Alternatives included alternative A 
(the 2005 rule), alternative C (the 1982 rule), alternative D (2005 
rule modified to not include the EMS requirement), alternative E (2005 
rule modified to not include EMS and explicitly to include timber 
requirements in the rule and standards as plan components). Primary 
sources of data used to estimate the costs and benefits of the 2000 
rule are from the results of a 2002 report entitled ``A Business 
Evaluation of the 2000 and Proposed NFMA Rules'' produced by the 
Inventory and Monitoring Institute of the Forest Service. The report is 
also identified as the ``2002 NFMA Costing Study,'' or simply as the 
``costing study.'' The costing study used a business modeling process 
to identify and compare major costs for the 2000 rule. The main source 
of data used to approximate costs under the 1982 rule is from a 2002 
report to Congress on planning costs, along with empirical data and 
inferences from the costing study.
    The cost-benefit analysis focuses on key activities in land 
management planning for which costs can be estimated under the 1982 
rule, the 2000 rule, the rule selected in this ROD, and the other 
alternative rules. The key activities for which costs were analyzed 
include regional guides, collaboration, consideration of science, 
evaluation of the sustainability of decisions, and diversity 
requirements under the National Forest Management Act of 1976 (16 
U.S.C. 1600 et seq.), monitoring, evaluation, and the resolution of 
disputes about the proposed plan decisions through the administrative 
processes of appeals and objections. The rule would reduce the cost of 
producing a plan or revision by shortening the length of the planning 
process and by providing the responsible official with more flexibility 
to decide the scope and scale of the planning process.
    The rule would require a comprehensive evaluation during plan 
development and plan revision that would be updated at least every 5 
years. Some upfront planning costs, such as analyzing and developing 
plan components, and documenting the land management planning process, 
are anticipated to shift to monitoring and evaluation to better 
document existing conditions and trends of past management activities 
and natural events when preparing a comprehensive evaluation of the 
plan under the rule.
    Based on costs that can be quantified, carrying out this final rule 
is expected to have an estimated annual average cost savings of $25.6 
million when

[[Page 21504]]

compared to the 2000 rule, and an estimated annual average savings of 
$0.2 million when compared to estimates of the 1982 rule. From this 
cost-benefit analysis, the estimated costs for carrying out the rule 
are expected to be lower than the 2000 rule.
    Agency costs for carrying out the rule, the 2000 rule, 1982 rule, 
and other alternative rules were discounted at 3 percent and 7 percent 
discount rates for the 15-year period from 2008 to 2022; then 
annualized costs were calculated for these alternatives. By using 3 
percent discount rate, the annualized cost for the rule was estimated 
at $104.6 million, while the annualized cost for the 2000 rule was $129 
million and for the 1982 rule was $104 million. The Agency expects the 
rule to have an annualized cost savings of about $24.6 million when 
compared with the 2000 rule, and an estimated annualized cost of $0.3 
million when compared with estimates of the 1982 rule.
    When using a 7 percent discount rate for the same timeframe, the 
results show the annualized cost estimate for the rule is $104.5 
million and the estimated annualized cost for the 2000 rule and the 
1982 rule are $127.2 million and $103.2 million respectively. Based on 
these annualized cost estimates at 7 percent discount rate, use of this 
rule is expected to have an annualized cost savings of $22.7 million 
when compared with the 2000 rule, and an estimated annualized cost of 
$1.3 million when compared with estimates of the 1982 rule. This 
quantitative assessment indicates a cost savings for the Agency using 
the rule.
    Although the annual average costs of the rule and the 1982 rule are 
relatively similar, there are substantive and significant differences 
in how planning dollars are invested annually. Under the 1982 rule, 68 
percent of all estimated annual planning expenditures are committed to 
plan revision processes, rather than monitoring and evaluation. An 
estimated 75 percent of annual planning expenditures would fund plan 
revisions under the 2000 rule. Under this rule, an estimated 51 percent 
of annual planning dollars would be expended for plan revisions, 
leaving nearly half of annual expenses for monitoring and evaluation 
that would keep plans more current and adaptive to new information and 
changing conditions.
    One of the criticisms of planning under the 1982 rule is that these 
plans were very unresponsive to new information and changing 
conditions. Once a revised plan is approved, the useful life of a plan 
EIS is very short when compared to the 15-year useful life of the 
revised plan. Spending a significant higher amount of available 
planning dollars on monitoring and evaluation over the life of the 
plan, instead of a large up front cost on plan revision and an EIS, 
will create more dynamic and adaptive plans. This will fulfill the 
purpose and need much more than the 1982 or 2000 rule.
    This rule has also been considered in light of the Regulatory 
Flexibility Act, as amended (5 U.S.C. 601 et seq.), and it has been 
determined this action will not have a significant economic impact on a 
substantial number of small business entities as defined by the 
Regulatory Flexibility Act. Therefore, a regulatory flexibility 
analysis is not required for this rule. The rule imposes no 
requirements on either small or large entities. Rather, the rule sets 
out the process the Forest Service will follow in land management 
planning for the NFS. The rule should provide opportunities for small 
businesses to become involved in the national forest, grassland, 
prairie, or other comparable administrative unit plan approval. 
Moreover, by streamlining the land management planning process, the 
rule should benefit small businesses through more timely decisions that 
affect outputs of products and services.

Environmental Impacts

    This rule sets up the administrative procedures to guide 
development, amendment, and revision of NFS land management plans. This 
rule, like earlier planning rules, does not dictate how administrative 
units of the NFS are to be managed. The Agency does not expect this 
rule will directly affect the mix of uses on any or all units of the 
NFS. Section 31.12 of FSH 1909.15 excludes from documentation in an EA 
or EIS ``rules, regulations, or policies to establish Servicewide 
administrative procedures, program processes, or instruction.'' The 
Agency believes this rule falls squarely within this category of 
actions and that no extraordinary circumstances exist that would 
require preparation of an EA or an EIS. However, because of the 
district court's March 30, 2007 decision in Citizens for Better 
Forestry v. USDA and the Agency's desire to reform the planning 
process, the Agency has prepared an EIS considering several 
alternatives to the rule and potential environmental impacts of those 
alternatives. The EIS is available on the Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fs.fed.us/emc/nfma/2008_planning_rule.html. The EIS explains 
there are no environmental impacts resulting from promulgating this 
rule.

Energy Effects

    This rule has been reviewed under Executive Order 13211, issued May 
18, 2001, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.'' It has been determined this rule 
does not constitute a significant energy action as defined in Executive 
Order 13211. This rule would guide the development, amendment, and 
revision of NFS land management plans. These plans are strategic 
documents that provide the guidance for making future project or 
activity-level resource management decisions. As such, these plans will 
address access requirements associated with energy exploration and 
development within the framework of multiple-use, sustained-yield 
management of the surface resources of the NFS lands. These land 
management plans might identify major rights-of-way corridors for 
utility transmission lines, pipelines, and water canals. Although these 
plans might consider the need for such facilities, they do not 
authorize constructing them; therefore, the rule and the plans 
developed under it do not have energy effects within the meaning of 
Executive Order 13211. The effects of constructing such lines, 
pipelines, and canals are, of requirement, considered on a case-by-case 
basis as specific construction proposals. Consistent with Executive 
Order 13211, direction to incorporate consideration of energy supply, 
distribution, and use in the planning process will be in the Agency's 
administrative directives for carrying out the rule.

Controlling Paperwork Burdens on the Public

    In accord with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.), the information collection or reporting requirements for the 
objection process were previously approved by the Office of Management 
and Budget (OMB) and assigned control number 0596-0158, expiring on 
December 31, 2006, for the 2005 rule. The OMB has extended this 
approval, effective January 31, 2007, using the same control number. 
This extension was made after the Forest Service provided the public an 
opportunity to comment on the extension as required by the Paperwork 
Reduction Act (71 FR 40687, July 18, 2006). The Forest Service received 
one comment about the extension. The information required by section 
219.13 is needed for an objector to explain the objection being made to 
a proposed land management plan, plan amendment, or plan revision. This 
rule retains but simplifies the objection process set up

[[Page 21505]]

in the 2000 rule. The rule removes the requirements previously provided 
in the 2000 rule for interested parties, publication of objections, and 
formal requests for meetings (36 CFR 219.32 of 2000 rule). These 
changes have resulted in a small reduction in burden hours approved by 
OMB for the 2000 rule.

Federalism

    The Agency has considered this rule under the requirements of 
Executive Order 13132 issued August 4, 1999, ``Federalism.'' The Agency 
has made an assessment the rule conforms to the Federalism principles 
set out in this Executive Order; would not impose any compliance costs 
on the states; and would not have substantial direct effects on the 
states, on the relation between the national government and the states, 
nor on distributing power and responsibilities among the various levels 
of government. Therefore, the Agency concludes this rule does not have 
Federalism implications. Moreover, section 219.9 of this rule shows 
sensitivity to Federalism concerns by requiring the responsible 
official to meet with, and provide opportunities for involvement of, 
State and local governments in the planning process.
    In the spirit of Executive Order 13132, the Agency consulted with 
State and local officials, including their national representatives, 
early in the process of developing the regulation. The Agency has 
consulted with the Western Governors' Association and the National 
Association of Counties to get their views on a preliminary draft of 
the 2002 proposed rule. The Western Governors' Association supported 
the general intent to create a regulation that works and placed 
importance on the quality of collaboration to be provided when the 
Agency puts into effect the regulation. Agency representatives also 
contacted the International City and County Managers Association, 
National Conference of State Legislators, The Council of State 
Governments, Natural Resources Committee of the National Governors 
Association, U.S. Conference of Mayors, and the National League of 
Cities to share information about the 2002 proposed rule before its 
publication. Based on comments received on the 2002 proposed rule, the 
Agency has determined more consultation was not needed with State and 
local governments for promulgating the 2005 rule, and thus this rule. 
State and local governments were encouraged to comment on the proposed 
rule during this rulemaking process.

Consultation With Indian Tribal Governments

    Pursuant to Executive Order 13175 of November 6, 2000, 
``Consultation and Coordination With Indian Tribal Governments,'' the 
Agency has assessed the impact of this rule on Indian Tribal 
governments and has determined the rule does not significantly or 
uniquely affect communities of Indian Tribal governments. The rule 
deals with the administrative procedures to guide the development, 
amendment, and revision of NFS land management plans and, as such, has 
no direct effect about the occupancy and use of NFS land. At section 
219.9(a)(3), the rule requires consultation with federally recognized 
Tribes when conducting land management planning. The Agency has also 
determined this rule does not impose substantial direct compliance 
costs on Indian Tribal governments. This rule does not mandate Tribal 
participation in NFS planning. Rather, the rule imposes an obligation 
on Forest Service officials to consult early with Tribal governments 
and to work cooperatively with them where planning issues affect Tribal 
interests.

No Takings Implications

    This rule has been analyzed in accord with the principles and 
criteria in Executive Order 12630 issued March 15, 1988, and it has 
been determined the rule does not pose the risk of a taking of private 
property.

Civil Justice Reform

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule (1) preempts all State and local laws and 
regulations that conflict with this rule or would impede the carrying 
out of this rule; (2) does not retroactively affect existing permits, 
contracts, or other instruments authorizing the occupancy and use of 
NFS lands; and (3) does not require administrative proceedings before 
parties could file suit in court challenging its provisions.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), the Agency has assessed the effects of this rule on 
State, local, and Tribal governments and the private sector. This rule 
does not compel the spending of $100 million or more by any State, 
local, or Tribal governments or anyone in the private sector. 
Therefore, a statement under section 202 of the Act is not required.

List of Subjects in 36 CFR Part 219

    Administrative practice and procedure, Environmental impact 
statements, Indians, Intergovernmental relations, National forests, 
Reporting and recordkeeping requirements, Science and technology.

0
Therefore, for the reasons set forth in the preamble, part 219 of title 
36 of the Code of Federal Regulations is revised to read as follows:

PART 219--PLANNING

Subpart A--National Forest System Land Management Planning
Sec.
219.1 Purpose and applicability.
219.2 Levels of planning and planning authority.
219.3 Nature of land management planning.
219.4 National Environmental Policy Act compliance.
219.5 Environmental management systems.
219.6 Evaluations and monitoring.
219.7 Developing, amending, or revising a plan.
219.8 Application of a new plan, plan amendment, or plan revision.
219.9 Public participation, collaboration, and notification.
219.10 Sustainability.
219.11 Role of science in planning.
219.12 Suitable uses and provisions required by NFMA.
219.13 Objections to plans, plan amendments, or plan revisions.
219.14 Effective dates and transition.
219.15 Severability.
219.16 Definitions.
Subpart B--[Reserved]

    Authority: 5 U.S.C. 301; 16 U.S.C. 1604, 1613.

Subpart A--National Forest System Land Management Planning


Sec.  219.1  Purpose and applicability.

    (a) The rules of this subpart set forth a process for land 
management planning, including the process for developing, amending, 
and revising land management plans (also referred to as plans) for the 
National Forest System (NFS), as required by the Forest and Rangeland 
Renewable Resources Planning Act of 1974, as amended by the National 
Forest Management Act of 1976 (16 U.S.C. 1600 et seq.), hereinafter 
referred to as NFMA. This subpart also describes the nature and scope 
of plans and plan components. This subpart is applicable to all units 
of the NFS as defined by 16 U.S.C. 1609 or subsequent statute.
    (b) Consistent with the Multiple-Use Sustained-Yield Act of 1960 
(16 U.S.C. 528-531) (MUSYA), the overall goal of managing the NFS is to 
sustain the multiple uses of its renewable resources

[[Page 21506]]

in perpetuity while maintaining the long-term productivity of the land. 
Resources are to be managed so they are utilized in the combination 
that will best meet the needs of the American people. Maintaining or 
restoring the health of the land enables the NFS to provide a 
sustainable flow of uses, benefits, products, services, and visitor 
opportunities.
    (c) The Chief of the Forest Service shall establish planning 
procedures for this subpart for plan development, plan amendment, or 
plan revision in the Forest Service Directive System.


Sec.  219.2  Levels of planning and planning authority.

    Planning occurs at multiple organizational levels and geographic 
areas.
    (a) National. The Chief of the Forest Service is responsible for 
national planning, such as preparation of the Forest Service Strategic 
Plan required under the Government Performance and Results Act of 1993 
(5 U.S.C. 306; 31 U.S.C. 1115-1119; 31 U.S.C. 9703-9704), which is 
integrated with the requirements of the Forest and Rangeland Renewable 
Resources Planning Act of 1974, as amended by the National Forest 
Management Act (NFMA). The Strategic Plan establishes goals, 
objectives, performance measures, and strategies for management of the 
NFS, as well as the other Forest Service mission areas.
    (b) Forest, grassland, prairie, or other comparable administrative 
unit.
    (1) Land management plans provide broad guidance and information 
for project and activity decisionmaking in a national forest, 
grassland, prairie, or other comparable administrative unit. The 
supervisor of the national forest, grassland, prairie, or other 
comparable administrative unit is the responsible official for 
development and approval of a plan, plan amendment, or plan revision 
for lands under the responsibility of the supervisor, unless a regional 
forester, the Chief, or the Secretary chooses to act as the responsible 
official.
    (2) When plans, plan amendments, or plan revisions are prepared for 
more than one administrative unit, a unit supervisor identified by the 
regional forester, or the regional forester, the Chief, or the 
Secretary may be the responsible official. Two or more responsible 
officials may undertake joint planning over lands under their 
respective jurisdictions.
    (3) The appropriate station director must concur with that part of 
a plan applicable to any experimental forest within the plan area.
    (c) Projects and activities. The supervisor or district ranger is 
the responsible official for project and activity decisions, unless a 
higher-level official chooses to act as the responsible official. 
Requirements for project or activity planning are established in the 
Forest Service Directive System. Except as specifically provided, none 
of the requirements of this subpart apply to projects or activities.
    (d) Developing, amending, and revising plans--(1) Plan development. 
If a new national forest, grassland, prairie, or other administrative 
unit of the NFS is established, the regional forester, or a forest, 
grassland, prairie, or other comparable unit supervisor identified by 
the regional forester must either develop a plan for the unit or amend 
or revise an existing plan to apply to the lands within the new unit.
    (2) Plan amendment. The responsible official may amend a plan at 
any time.
    (3) Plan revision. The responsible official must revise the plan if 
the responsible official concludes that conditions within the plan area 
have significantly changed. Unless otherwise provided by law, a plan 
must be revised at least every 15 years.


Sec.  219.3  Nature of land management planning.

    (a) Principles of land management planning. Land management 
planning is an adaptive management process that includes social, 
economic, and ecological evaluation; plan development, plan amendment, 
and plan revision; and monitoring. The aim of planning is to produce 
responsible land management for the NFS based on useful and current 
information and guidance. Land management planning guides the Forest 
Service in fulfilling its responsibilities for stewardship of the NFS 
to best meet the needs of the American people.
    (b) Force and effect of plans. Plans developed in accord with this 
subpart generally contain desired conditions, objectives, and guidance 
for project and activity decisionmaking in the plan area. Plans do not 
grant, withhold, or modify any contract, permit, or other legal 
instrument; subject anyone to civil or criminal liability; or create 
any legal rights. Plans typically do not approve or execute projects 
and activities. Decisions with effects that can be meaningfully 
evaluated (40 CFR 1508.23) typically are made when projects and 
activities are approved.


Sec.  219.4  National Environmental Policy Act compliance.

    (a) In accord with 16 U.S.C. 1604(g)(1) this subpart clarifies how 
the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4346) 
(hereinafter referred to as NEPA) applies to NFS land management 
planning.
    (b) Approval of a plan, plan amendment, or plan revision, under the 
authority of this subpart, will be done in accord with the Forest 
Service NEPA procedures.
    (c) Nothing in this subpart alters the application of NEPA to 
proposed projects and activities.
    (d) Monitoring and evaluations, including those required by Sec.  
219.6, may be used or incorporated by reference, as appropriate, in 
applicable NEPA documents.


Sec.  219.5  Environmental management systems.

    The responsible official will establish an environmental management 
system (EMS) or conform to a multi-unit, regional, or national level 
EMS. The scope of an EMS will include, at the minimum, land management 
environmental aspects as determined by the responsible official or 
established in a multi-unit, regional, or national level EMS. An EMS 
may also include environmental aspects unrelated to land management if 
deemed appropriate.
    (a) An EMS may be established independently of the planning 
process.
    (b) The Chief of the Forest Service shall establish procedures in 
the Forest Service Directive System to ensure that an appropriate 
EMS(s) is in place. The responsible official may determine whether and 
how to change and improve an EMS, consistent with those procedures.
    (c) The EMS must conform to the consensus standard developed by the 
International Organization for Standardization (ISO) and adopted by the 
American National Standards Institute (ANSI) as ``ISO 14001: 
Environmental Management Systems--Specification With Guidance For Use'' 
(ISO 14001). The ISO 14001 describes EMSs and outlines the elements of 
an EMS.
    (d) No project or activity approved under a plan developed, 
amended, or revised under the requirements of this subpart may be 
implemented until the responsible official establishes an EMS or the 
responsible official conforms to a multi-unit, regional, or national 
level EMS as required by this section.


Sec.  219.6  Evaluations and monitoring.

    (a) Evaluations. The responsible official shall keep the plan set 
of documents up to date with evaluation reports, which will reflect 
changing conditions, science, and other relevant information. The 
following three types

[[Page 21507]]

of evaluations are required for land management planning: Comprehensive 
evaluations for plan development and revision, evaluations for plan 
amendment, and annual evaluations of monitoring information. The 
responsible official shall document evaluations in evaluation reports, 
make these reports available to the public as required in Sec.  219.9, 
and include these reports in the plan set of documents (Sec.  
219.7(a)(1)). Evaluations under this section should be commensurate to 
the level of risk or benefit associated with the nature and level of 
expected management activities in the plan area.
    (1) Comprehensive evaluations. These evaluate current social, 
economic, and ecological conditions and trends that contribute to 
sustainability, as described in Sec.  219.10. Comprehensive evaluations 
and comprehensive evaluation reports must be updated at least every 5 
years to reflect any substantial changes in conditions and trends since 
the last comprehensive evaluation. A comprehensive evaluation report 
may be combined with other documents, including NEPA documents. The 
responsible official must ensure that comprehensive evaluations, 
including any updates necessary, include the following elements:
    (i) Area of analysis. The area(s) of analysis must be clearly 
identified.
    (ii) Conditions and trends. The current social, economic, and 
ecological conditions and trends and substantial changes from 
previously identified conditions and trends must be described based on 
available information, including monitoring information, surveys, 
assessments, analyses, and other studies as appropriate. Evaluations 
may build upon existing studies and evaluations.
    (2) Evaluation for a plan amendment. An evaluation for a plan 
amendment must analyze the issues relevant to the purposes of the 
amendment and may use the information in comprehensive evaluations 
relevant to the plan amendment. When a plan amendment is made 
contemporaneously with, and only applies to, a project or activity 
decision, the analysis prepared for the project or activity may be used 
to satisfy the requirements for an evaluation for an amendment.
    (3) Annual evaluation of the monitoring information. Monitoring 
results must be evaluated annually and in accord with paragraph (b)(2) 
of this section.
    (b) Monitoring. The plan must describe the monitoring program for 
the plan area. Monitoring information in the plan document or set of 
documents may be changed and updated as appropriate, at any time. Such 
changes and updates are administrative corrections (Sec.  219.7(b)) and 
do not require a plan amendment or revision.
    (1) The plan-monitoring program shall be developed with public 
participation and take into account:
    (i) Financial and technical capabilities;
    (ii) Key social, economic, and ecological performance measures 
relevant to the plan area; and
    (iii) The best available science.
    (2) The plan-monitoring program shall provide for:
    (i) Monitoring to assist in evaluating the effects of each 
management system to the end that it will not produce substantial and 
permanent impairment of the productivity of the land;
    (ii) Monitoring of the degree to which on-the-ground management is 
maintaining or making progress toward the desired conditions and 
objectives for the plan; and
    (iii) Adjustment of the monitoring program as appropriate to 
account for unanticipated changes in conditions.
    (3) The responsible official may conduct monitoring jointly with 
others, including but not limited to, Forest Service units, Federal, 
State or local government agencies, federally recognized Indian Tribes, 
Alaska Native Corporations, and members of the public.


Sec.  219.7  Developing, amending, or revising a plan.

    (a) General planning requirements--(1) Plan documents or set of 
documents. The responsible official must maintain a plan document or 
set of documents for the plan. A plan document or set of documents 
includes, but is not limited to evaluation reports; documentation of 
public involvement; the plan, including applicable maps; applicable 
plan approval documents; applicable NEPA documents, if any; applicable 
EMS documents, if any; and the monitoring program for the plan area.
    (2) Plan components. Plan components may apply to all or part of 
the plan area. A plan should include the following components:
    (i) Desired conditions. Desired conditions are the social, 
economic, and ecological attributes toward which management of the land 
and resources is to be directed. Desired conditions are aspirations and 
are not commitments or final decisions approving projects and 
activities, and may be achievable only over a long time period.
    (ii) Objectives. Objectives are concise projections of measurable, 
time-specific intended outcomes. The objectives for a plan are the 
means of measuring progress toward achieving or maintaining desired 
conditions. Like desired conditions, objectives are aspirations and are 
not commitments or final decisions approving projects and activities.
    (iii) Guidelines. Guidelines provide information and guidance for 
project and activity decisionmaking to help achieve desired conditions 
and objectives. Guidelines are not commitments or final decisions 
approving projects and activities.
    (iv) Suitability of areas. Areas of each NFS unit are identified as 
generally suitable for various uses (Sec.  219.12). An area may be 
identified as generally suitable for uses that are compatible with 
desired conditions and objectives for that area. An area may be 
identified as generally not suitable for uses that are not compatible 
with desired conditions and objectives for that area. Identification of 
an area as generally suitable or not suitable for a use is guidance for 
project and activity decisionmaking and not a commitment nor a final 
decision approving projects and activities. Uses of specific areas are 
approved through project and activity decisionmaking.
    (v) Special areas. Special areas are areas in the NFS designated 
because of their unique or special characteristics. Special areas such 
as botanical areas or significant caves may be designated, by the 
responsible official in approving a plan, plan amendment, or plan 
revision. Such designations are not final decisions approving projects 
and activities. The plan may also recognize special areas designated by 
statute or through a separate administrative process in accord with 
NEPA requirements (Sec.  219.4) and other applicable laws.
    (3) Standards. A plan may include standards as a plan component. 
Standards are constraints upon project and activity decisionmaking and 
are explicitly identified in a plan as ``standards.'' Standards are 
established to help achieve the desired conditions and objectives of a 
plan and to comply with applicable laws, regulations, Executive orders, 
and agency directives.
    (4) Changing plan components. Plan components may be changed 
through plan amendment or revision or through an administrative 
correction in accord with Sec.  219.7(b).
    (5) Planning authorities. The responsible official has the 
discretion to determine whether and how to change the plan, subject to 
the requirement that the plan be revised at least every 15 years. A 
decision by a responsible official about whether or not to initiate the 
plan amendment or plan revision

[[Page 21508]]

process and what issues to consider for plan development, plan 
amendment, or plan revision is not subject to objection under this 
subpart (Sec.  219.13).
    (6) Plan process. (i) Required evaluation reports, plans, plan 
amendments, and plan revisions must be prepared by an interdisciplinary 
team; and
    (ii) Unless otherwise provided by law, all NFS lands possessing 
wilderness characteristics must be considered for recommendation as 
potential wilderness areas during plan development or revision.
    (7) Developing plan options. In the collaborative and participatory 
process of land management planning, the responsible official may use 
an iterative approach in development of a plan, plan amendment, and 
plan revision in a way that plan options are developed and narrowed 
successively. The key steps in this process shall be documented in the 
plan set of documents.
    (b) Administrative corrections. Administrative corrections may be 
made at any time, and are not plan amendments or revisions. 
Administrative corrections include the following:
    (1) Corrections and updates of data and maps;
    (2) Corrections of typographical errors or other non-substantive 
changes;
    (3) Changes in the monitoring program and monitoring information 
(Sec.  219.6(b));
    (4) Changes in timber management projections or other projections 
of uses or activities; and
    (5) Other changes in the plan document or set of documents that are 
not substantive changes in the plan components.
    (c) Approval document. The responsible official must record 
approval of a new plan, plan amendment, or plan revision in a plan 
approval document, which must include:
    (1) The reasons for the approval of the plan, plan amendment, or 
plan revision;
    (2) Concurrence by the appropriate station director with any part 
of the plan applicable to any experimental forest in the plan area, in 
accord with Sec.  219.2(b)(3);
    (3) A statement of how the plan, plan amendment, or plan revision 
applies to approved projects and activities, in accord with Sec.  
219.8;
    (4) Science documentation, in accord with Sec.  219.11; and
    (5) The effective date of the approval (Sec.  219.14(a)).
    If a plan approval document is, in whole or part, the culmination 
of an EA or EIS process, the plan approval document or pertinent part 
thereof, must be prepared in accord with Forest Service NEPA 
procedures.


Sec.  219.8  Application of a new plan, plan amendment, or plan 
revision.

    (a) Application of a new plan, plan amendment, or plan revision to 
existing authorizations and approved projects or activities. (1) The 
responsible official must include in any document approving a plan 
amendment or revision a description of the effects of the plan, plan 
amendments, or plan revision on existing occupancy and use authorized 
by permits, contracts, or other instruments carrying out approved 
projects and activities. If not expressly excepted, approved projects 
and activities must be consistent with applicable plan components, as 
provided in paragraph (e) of this section. Approved projects and 
activities are those for which a responsible official has signed a 
decision document.
    (2) Any modifications of such permits, contracts, or other 
instruments needed to make them consistent with applicable plan 
components as developed, amended, or revised are subject to valid 
existing rights. Such modifications should be made as soon as 
practicable following approval of a new plan, plan amendment, or plan 
revision.
    (b) Application of a new plan, plan amendment, or plan revision to 
authorizations and projects or activities subsequent to plan approval. 
Decisions approving projects and activities subsequent to approval of a 
plan, plan amendment, or plan revision must be consistent with the plan 
as provided in paragraph (e) of this section.
    (c) Application of a plan. Plan provisions remain in effect until 
the effective date of a new plan, plan amendment, or plan revision.
    (d) Effect of new information on projects or activities. Although 
new information will be considered in accord with agency NEPA 
procedures, nothing in this subpart requires automatic deferral, 
suspension, or modification of approved decisions in light of new 
information.
    (e) Ensuring project or activity consistency with plans. Projects 
and activities must be consistent with the applicable plan components. 
If an existing (paragraph (a) of this section) or proposed (paragraph 
(b) of this section) use, project, or activity is not consistent with 
the applicable plan components, the responsible official may take one 
of the following steps, subject to valid existing rights:
    (1) Modify the project or activity to make it consistent with the 
applicable plan components;
    (2) Reject the proposal or terminate the project or activity, 
subject to valid existing rights; or
    (3) Amend the plan contemporaneously with the approval of the 
project or activity so that it will be consistent with the plan as 
amended. The amendment may be limited to apply only to the project or 
activity.


Sec.  219.9  Public participation, collaboration, and notification.

    The responsible official must use a collaborative and participatory 
approach to land management planning, in accord with this subpart and 
consistent with applicable laws, regulations, and policies, by engaging 
the skills and interests of appropriate combinations of Forest Service 
staff, consultants, contractors, other Federal agencies, federally 
recognized Indian Tribes, Alaska Native Corporations, State or local 
governments, or other interested or affected communities, groups, or 
persons.
    (a) Providing opportunities for participation. The responsible 
official must provide opportunities for the public to collaborate and 
participate openly and meaningfully in the planning process, taking 
into account the discrete and diverse roles, jurisdictions, and 
responsibilities of interested and affected parties. Specifically, as 
part of plan development, plan amendment, and plan revision, the 
responsible official shall involve the public in developing and 
updating the comprehensive evaluation report, establishing the 
components of the plan, and designing the monitoring program. The 
responsible official has the discretion to determine the methods and 
timing of public involvement opportunities.
    (1) Engaging interested individuals and organizations. The 
responsible official must provide for and encourage collaboration and 
participation by interested individuals and organizations, including 
private landowners whose lands are in, adjacent to, or otherwise 
affected by future management actions in the plan area.
    (2) Engaging State and local governments and Federal agencies. The 
responsible official must provide opportunities for the coordination of 
Forest Service planning efforts undertaken in accord with this subpart 
with those of other resource management agencies. The responsible 
official also must meet with and provide early opportunities for other 
government agencies to be involved, to

[[Page 21509]]

collaborate, and to participate in planning for NFS lands. The 
responsible official should seek assistance, where appropriate, from 
other State and local governments, Federal agencies, and scientific and 
academic institutions to help address management issues or 
opportunities.
    (3) Engaging Tribal governments and Alaska Native Corporations. The 
Forest Service recognizes the Federal Government's trust responsibility 
for federally recognized Indian Tribes. The responsible official must 
consult with, invite, and provide opportunities for any federally 
recognized Indian Tribes and Alaska Native Corporations that may be 
affected by the planning process to collaborate and participate. In 
working with federally recognized Indian Tribes, the responsible 
official must honor the government-to-government relationship between 
Tribes and the Federal Government. The responsible official should seek 
assistance, where appropriate, from federally recognized Indian Tribes 
and Alaska Native Corporations to help address management issues or 
opportunities.
    (b) Public notification. The following public notification 
requirements apply to plan development, amendment, or revision, except 
when a plan amendment is approved contemporaneously with approval of a 
project or activity and the amendment applies only to the project or 
activity, in a way that 36 CFR part 215 or part 218, subpart A, 
applies:
    (1) When formal public notification is provided. Public 
notification must be provided at the following times:
    (i) Initiation of development of a plan, plan amendment, or plan 
revision
    (ii) Commencement of the 90-day comment period on a proposed plan, 
plan amendment, or plan revision
    (iii) Commencement of the 30-day objection period prior to approval 
of a plan, plan amendment, or plan revision
    (iv) Approval of a plan, plan amendment, or plan revision
    (v) Adjustment to conform to this subpart of a planning process for 
a plan, plan amendment, or plan revision initiated under the provisions 
of a previous planning regulation
    (2) How public notice is provided. Public notice must be provided 
in the following ways:
    (i) All required public notices applicable to a new plan, plan 
revision, or any ongoing plan revision as provided in Sec.  219.14(b) 
must be published in the Federal Register and newspaper(s) of record.
    (ii) Required notifications that are associated with a plan 
amendment or any ongoing plan amendment as provided in Sec.  219.14(b) 
and that apply to one plan must be published in the newspaper(s) of 
record. Required notifications that are associated with plan amendments 
and any ongoing plan amendments (as provided at Sec.  219.14(b)) and 
that apply to more than one plan must be published in the Federal 
Register.
    (iii) Public notification of evaluation reports and monitoring 
program changes may be made in a way deemed appropriate by the 
responsible official.
    (3) Content of the public notice. Public notices must contain the 
following information:
    (i) Content of the public notice for initiating a plan development, 
plan amendment, or plan revision. The notice must inform the public of 
the documents available for review and how to obtain them; provide a 
summary of the need to develop a plan or change a plan; invite the 
public to comment on the need for change in a plan; identify any other 
need for change in a plan that they feel should be addressed during the 
planning process; provide an estimated schedule for the planning 
process, including the time available for comments; and inform the 
public how to submit comments.
    (ii) Content of the public notice for a proposed plan, plan 
amendment, or plan revision. The notice must inform the public of the 
availability of the proposed plan, plan amendment, or plan revision, 
including any relevant evaluation report; the commencement of the 90-
day comment period; and the process for submitting comments.
    (iii) Content of the public notice for a plan, plan amendment, or 
plan revision before approval. The notice must inform the public of the 
availability of the plan, plan amendment, or plan revision; any 
relevant evaluation report; and the commencement of the 30-day 
objection period; and the process for objecting.
    (iv) Content of the public notice for approval of a plan, plan 
amendment, or plan revision. The notice must inform the public of the 
availability of the approved plan, plan amendment, or plan revision, 
the approval document, and the effective date of the approval (Sec.  
219.14(a)).
    (v) Content of the public notice for an ongoing planning process. 
The notice must state whether or not a planning process initiated 
before April 21, 2008 (Sec.  219.14(b)) will be adjusted to conform to 
this subpart.


Sec.  219.10  Sustainability.

    Sustainability, for any unit of the NFS, has three interrelated and 
interdependent elements: Social, economic, and ecological. A plan can 
contribute to sustainability by creating a framework to guide on-the-
ground management of projects and activities; however, a plan by itself 
cannot ensure sustainability. Agency authorities, the nature of a plan, 
and the capabilities of the plan area are some of the factors that 
limit the extent to which a plan can contribute to achieving 
sustainability.
    (a) Sustaining social and economic systems. The overall goal of the 
social and economic elements of sustainability is to contribute to 
sustaining social and economic systems within the plan area. To 
understand the social and economic contributions that National Forest 
System lands presently make, and may make in the future, the 
responsible official, in accordance with Sec.  219.6, must evaluate 
relevant economic and social conditions and trends as appropriate 
during plan development, plan amendment, or plan revision.
    (b) Sustaining ecological systems. The overall goal of the 
ecological element of sustainability is to provide a framework to 
contribute to sustaining native ecological systems by providing 
appropriate ecological conditions to support diversity of native plant 
and animal species in the plan area. This will satisfy the statutory 
requirement to provide for diversity of plant and animal communities 
based on the suitability and capability of the specific land area in 
order to meet overall multiple-use objectives (16 U.S.C. 
1604(g)(3)(B)). Procedures developed pursuant to Sec.  219.1(c) for 
sustaining ecological systems must be consistent with the following:
    (1) Ecosystem diversity. Ecosystem diversity is the primary means 
by which a plan contributes to sustaining ecological systems. Plan 
components must establish a framework to provide the characteristics of 
ecosystem diversity in the plan area.
    (2) Species diversity. If the responsible official determines that 
provisions in plan components, in addition to those required by 
paragraph (b)(1) of this section, are needed to provide appropriate 
ecological conditions for specific threatened and endangered species, 
species-of-concern, and species-of-interest, then the plan must include 
additional provisions for these species, consistent with the limits of 
Agency authorities, the capability of the plan area, and overall 
multiple use objectives.


Sec.  219.11  Role of science in planning.

    (a) The responsible official must take into account the best 
available science. For purposes of this subpart, taking into

[[Page 21510]]

account the best available science means the responsible official must:
    (1) Document how the best available science was taken into account 
in the planning process within the context of the issues being 
considered;
    (2) Document that the science was appropriately interpreted and 
applied.
    (b) To meet the requirements of paragraph (a) of this section, the 
responsible official may use independent peer review, a science 
advisory board, or other review methods to evaluate the consideration 
of science in the planning process.


Sec.  219.12  Suitable uses and provisions required by NFMA.

    (a) Suitable uses--(1) Identification of suitable land uses. 
National Forest System lands are generally suitable for a variety of 
multiple uses, such as outdoor recreation, range, timber, watershed, 
and wildlife and fish purposes. The responsible official, as 
appropriate, shall identify areas within a National Forest System unit 
as generally suitable for uses that are compatible with desired 
conditions and objectives for that area. The responsible official may 
identify lands within the plan area as generally not suitable for uses 
that are not compatible with desired conditions and objectives for that 
area. Identification of an area as generally suitable or not suitable 
for a use is guidance for project and activity decisionmaking and not a 
permanent land designation, and is subject to change through plan 
amendment or plan revision.
    A plan approval document may include project and activity decisions 
including prohibitions of a specific use (or uses) under 36 CFR part 
261 or authorization of a specific use (or uses) when the supporting 
analysis and plan approval document for the prohibition or use is in 
accordance with the Forest Service NEPA procedures.
    (2) Identification of lands not suitable for timber production. (i) 
The responsible official must identify lands within the plan area as 
not suitable for timber production (Sec.  219.16) if:
    (A) Statute, Executive Order, or regulation prohibits timber 
production on the land; or
    (B) The Secretary of Agriculture or the Chief of the Forest Service 
has withdrawn the land from timber production; or
    (C) The land is not forest land (as defined at Sec.  219.16); or
    (D) Timber production would not be compatible with the achievement 
of desired conditions and objectives established by the plan for those 
lands; or
    (E) The technology is not available for conducting timber harvest 
without causing irreversible damage to soil, slope, or other watershed 
conditions or substantial and permanent impairment of the productivity 
of the land; or
    (F) There is no reasonable assurance that such lands can be 
adequately restocked within 5 years after final regeneration harvest.
    (ii) This identification in a plan is not a final decision 
compelling, approving, or prohibiting projects and activities. A final 
determination of suitability for timber production is made through 
project and activity decisionmaking.
    (3) Lands suitable for timber production. After considering 
physical, ecological, social, economic, and other pertinent factors to 
the extent feasible, a Responsible Official may establish timber 
production as an objective in a plan for any lands not identified in 
paragraph (a)(2)(i) of this section. The responsible official must 
review lands not suited for timber production at least once every 10 
years, or as otherwise prescribed by law, to determine their 
suitability for timber production. As a result of this 10-year review, 
timber production may be established as a plan objective for any lands 
found to be suitable for such purpose through amendment or revision of 
the plan.
    (4) Other lands where trees may be harvested for multiple use 
values other than timber production. Designation of lands as not 
suitable for timber production does not preclude the harvest of trees 
on those lands for salvage, sanitation, or other multiple use purposes. 
Except for lands described at paragraph (a)(2)(i)(E) of this section, 
timber harvest may be used as a tool to assist in achieving or 
maintaining applicable desired conditions or objectives.
    (b) Plan provisions for resource management. A plan should include 
provisions for the following:
    (1) Limitations on even-aged timber harvest methods, including 
provisions to require harvest in a manner consistent with the 
protection of soil, watershed, fish, wildlife, recreation, and 
aesthetic resources and the regeneration of the timber resource, 
including requirements that even-aged harvest may occur only upon a 
finding that it is appropriate and that clearcutting may occur only 
upon a finding that it is the optimum method to meet the objectives and 
requirements of the plan;
    (2) Maximum size openings created by timber harvest according to 
geographic areas, forest types, or other suitable classifications for 
areas to be cut in one regeneration harvest operation. This limit may 
be less than, but will not exceed, 60 acres for the Douglas-fir forest 
type of California, Oregon, and Washington; 80 acres for the southern 
yellow pine types of Alabama, Arkansas, Georgia, Florida, Louisiana, 
Mississippi, North Carolina, South Carolina, Oklahoma, and Texas; 100 
acres for the hemlock-Sitka spruce forest type of coastal Alaska; and 
40 acres for all other forest types. The plan must allow for exceeding 
its limitations on maximum size openings after appropriate public 
notice and review by the supervisor of the responsible official who 
normally would approve the harvest proposal. The plan maximum size 
openings must not apply to the size of areas harvested as a result of 
natural catastrophic conditions such as fire, insect and disease 
attack, or windstorm;
    (3) Provisions that cut blocks, patches, or strips that are shaped 
and blended to the extent practicable with the natural terrain;
    (4) Provisions for maintaining or restoring soil and water 
resources, including protection for streams, streambanks, shorelines, 
lakes, wetlands, and other bodies of water from detrimental changes in 
water temperatures, blockages of water courses, and deposits of 
sediment, when management activities are likely to seriously and 
adversely affect water conditions or fish habitat;
    (5) Provisions that timber harvest projects be considered through 
interdisciplinary review, assessing the potential environmental, 
biological, aesthetic, engineering, and economic impacts on the sale 
area, as well as the consistency of the sale with the multiple use of 
the general area, and that the harvesting system used is not selected 
primarily because it will give the greatest dollar return or the 
greatest unit output of timber;
    (6) Provisions that there is reasonable assurance that lands can be 
adequately restocked within 5 years after final regeneration harvest; 
and
    (7) Provisions that soil, slope, or other watershed conditions will 
not be irreversibly damaged by timber harvest.
    (c) Forest Service Directive System procedures. (1) The Chief of 
the Forest Service must include in the Forest Service Directive System 
procedures for estimating the quantity of timber that can be removed 
annually in perpetuity on a sustained-yield basis in accordance with 16 
U.S.C. 1611.
    (2) The Chief of the Forest Service must include in the Forest 
Service Directive System requirements assuring that even-aged stands of 
trees scheduled for harvest during the planning period have generally 
reached culmination of mean annual increment of growth. This

[[Page 21511]]

requirement applies only to regeneration harvest of even-aged stands on 
lands identified as suitable for timber production and where timber 
production is a management purpose for the harvest.
    (3) Forest Service Directive System procedures to fulfill the 
requirements of this paragraph shall be adopted following public 
involvement as described in 36 CFR part 216.


Sec.  219.13  Objections to plans, plan amendments, or plan revisions.

    (a) Opportunities to object. Before approving a plan, plan 
amendment, or plan revision, the responsible official must provide the 
public 30 calendar days for pre-decisional review and the opportunity 
to object. Federal agencies may not object under this subpart. During 
the 30-day review period, any person or organization, other than a 
Federal agency, who participated in the planning process through the 
submission of written comments, may object to a plan, plan amendment, 
or plan revision according to the procedures in this section, except in 
the following circumstances:
    (1) When a plan amendment is approved contemporaneously with a 
project or activity decision and the plan amendment applies only to the 
project or activity, in a way that the administrative review process of 
36 CFR part 215 or part 218, subpart A, applies instead of the 
objection process established in this section; or
    (2) When the responsible official is an official in the Department 
of Agriculture at a level higher than the Chief of the Forest Service, 
in a way that there is no opportunity for administrative review.
    (b) Submitting objections. The objection must be in writing and 
must be filed with the reviewing officer within 30 days following the 
publication date of the legal notice in the newspaper of record of the 
availability of the plan, plan amendment, or plan revision. Specific 
details will be in the Forest Service Directive System. An objection 
must contain:
    (1) The name, mailing address, and telephone number of the person 
or entity filing the objection. Where a single objection is filed by 
more than one person, the objection must indicate the lead objector to 
contact. The reviewing officer may appoint the first name listed as the 
lead objector to act on behalf of all parties to the single objection 
when the single objection does not specify a lead objector. The 
reviewing officer may communicate directly with the lead objector and 
is not required to notify the other listed objectors of the objection 
response or any other written correspondence related to the single 
objection;
    (2) A statement of the issues, the parts of the plan, plan 
amendment, or plan revision to which the objection applies, and how the 
objecting party would be adversely affected; and
    (3) A concise statement explaining how the objector believes that 
the plan, plan amendment, or plan revision is inconsistent with law, 
regulation, or policy or how the objector disagrees with the decision 
and providing any recommendations for change.
    (c) Responding to objections. (1) The reviewing officer (Sec.  
219.16) has the authority to make all procedural determinations related 
to the objection not specifically explained in this subpart, including 
those procedures necessary to ensure compatibility, to the extent 
practicable, with the administrative review processes of other Federal 
agencies. The reviewing officer must promptly render a written response 
to the objection. The response must be sent to the objecting party by 
certified mail, return receipt requested.
    (2) The response of the reviewing officer shall be the final 
decision of the Department of Agriculture on the objection.
    (d) Use of other administrative review processes. Where the Forest 
Service is a participant in a multi-Federal agency effort that would 
otherwise be subject to objection under this subpart, the reviewing 
officer may waive the objection procedures of this subpart and instead 
adopt the administrative review procedure of another participating 
Federal agency. As a condition of such a waiver, the responsible 
official for the Forest Service must have agreement with the 
responsible official of the other agency or agencies that a joint 
agency response will be provided to those who file for administrative 
review of the multi-agency effort.
    (e) Compliance with the Paperwork Reduction Act. The information 
collection requirements associated with submitting an objection have 
been approved by the Office of Management and Budget and assigned 
control number 0596-0158.


Sec.  219.14  Effective dates and transition.

    (a) Effective dates. A plan, plan amendment, or plan revision is 
effective 30 days after publication of notice of its approval (Sec.  
219.9(b)), except when a plan amendment is approved contemporaneously 
with a project or activity and applies only to the project or activity, 
in a way that 36 CFR part 215 or part 218, subpart A, apply.
    (b) Transition. For the purposes of this section, initiation means 
that the Agency has provided notice under Sec.  219.9(b) or issued a 
notice of intent or other public notice announcing the commencement of 
the process to develop a plan, plan amendment, or plan revision.
    (1) Plan development and plan revisions. Plan development and plan 
revisions initiated after April 21, 2008 must conform to the 
requirements of this subpart, except that the plan for the Tongass 
National Forest may be revised once under this subpart or the planning 
regulations in effect before November 9, 2000.
    (2) Plan Amendments. With respect to plans approved or revised 
pursuant to the planning regulation in effect before November 9, 2000 
(see 36 CFR parts 200 to 299, Revised as of July 1, 2000), a 3-year 
transition period for plan amendments begins on April 21, 2008. During 
the transition period, plan amendments may continue using the 
provisions of the planning regulation in effect before November 9, 
2000, or may conform to the requirements of this subpart. If the 
responsible official uses the provisions of the prior planning 
regulations, the responsible official may elect to use either the 
administrative appeal and review procedures at 36 CFR part 217 in 
effect prior to November 9, 2000 (See 36 CFR parts 200 to 299, Revised 
as of July 1, 2000), or the objection procedures of this subpart. Plan 
amendments initiated after the transition period must conform to the 
requirements of this subpart.
    (3) Plan development, plan amendments, or plan revisions underway 
before this rule. (i) For plan development, plan amendments, or plan 
revisions that had been underway before April 21, 2008, using the 
provisions of the planning regulations in effect before November 9, 
2000 (See 36 CFR parts 200 to 299, Revised as of July 1, 2000) the 
responsible official is not required to halt the process and start over 
but may complete those processes in conformance of the provisions of 
those regulations or in conformance to the requirements of this 
subpart.
    (ii) For plan development plan amendment, or plan revisions that 
had been underway before April 21, 2008 using the provisions of the 
planning regulations in effect January 5, 2005 (See 36 CFR parts 200 to 
299, Revised as of July 1, 2005) the responsible official is not 
required to start over under this subpart upon a finding that the plan, 
plan amendment, or plan revision process undertaken before April 21, 
2008 conforms to the requirements of this subpart.

[[Page 21512]]

    (iii) The responsible official may elect to use either the 
administrative appeal and review procedures at 36 CFR part 217 in 
effect prior to November 9, 2000 (See 36 CFR parts 200 to 299, Revised 
as of July 1, 2000), or the objection procedures of this subpart, 
except when a plan amendment is approved contemporaneously with a 
project or activity and applies only to the project or activity, in a 
way that 36 CFR part 215 or part 218, subpart A, apply.
    (4) Plans developed, amended, or revised using the provisions of 
the planning rule in effect prior to November 9, 2000. For units with 
plans developed, amended, or revised using the provisions of the 
planning rule in effect prior to November 9, 2000 (See 36 CFR parts 200 
to 299, Revised as of July 1, 2000), that rule is without effect. No 
obligations remain from that regulation, except those that are those 
specifically in the plan.


Sec.  219.15  Severability.

    In the event that any specific provision of this rule is deemed by 
a court to be invalid, the remaining provisions shall remain in effect.


Sec.  219.16  Definitions.

    Definitions of the special terms used in this subpart are set out 
in alphabetical order.
    Adaptive management: A system of management practices based on 
clearly identified outcomes and monitoring to determine if management 
actions are meeting desired outcomes, and if not, to facilitate 
management changes that will best ensure that outcomes are met or re-
evaluated. Adaptive management stems from the recognition that 
knowledge about natural resource systems is sometimes uncertain.
    Alaska Native Corporations: The regional, urban, and village native 
corporations formed under the Alaska Native Claims Settlement Act of 
1971.
    Area of analysis: The geographic area within which ecosystems, 
their components, or their processes are evaluated during analysis and 
development of one or more plans, plan revisions, or plan amendments. 
This area may vary in size depending on the relevant planning issue. 
For a plan, an area of analysis may be larger than a plan area. For 
development of a plan amendment, an area of analysis may be smaller 
than the plan area. An area of analysis may include multiple 
ownerships.
    Diversity of plant and animal communities: The distribution and 
relative abundance or extent of plant and animal communities and their 
component species, including tree species, occurring within an area.
    Ecological conditions: Components of the biological and physical 
environment that can affect diversity of plant and animal communities 
and the productive capacity of ecological systems. These components 
could include the abundance and distribution of aquatic and terrestrial 
habitats, roads and other structural developments, human uses, and 
invasive, exotic species.
    Ecosystem diversity: The variety and relative extent of ecosystem 
types, including their composition, structure, and processes within all 
or a part of an area of analysis.
    Environmental management system: The part of the overall management 
system that includes organizational structure, planning activities, 
responsibilities, practices, procedures, processes, and resources for 
developing, implementing, achieving, reviewing, and maintaining 
environmental policy.
    Federally recognized Indian Tribe: An Indian or Alaska Native 
Tribe, band, nation, pueblo, village, or community that the Secretary 
of the Interior acknowledges to exist as an Indian Tribe pursuant to 
the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.
    Forest land: Land at least 10 percent occupied by forest trees of 
any size or formerly having had such tree cover and not currently 
developed for non-forest uses. Lands developed for non-forest use 
include areas for crops; improved pasture; residential or 
administrative areas; improved roads of any width and adjoining road 
clearing; and power line clearings of any width.
    ISO 14001: A consensus standard developed by the International 
Organization for Standardization and adopted by the American National 
Standards Institute that describes environmental management systems and 
outlines the elements of an environmental management system.
    Newspaper(s) of record: The principal newspapers of general 
circulation annually identified and published in the Federal Register 
by each regional forester to be used for publishing notices as required 
by 36 CFR 215.5. The newspaper(s) of record for projects in a plan area 
is (are) the newspaper(s) of record for notices related to planning.
    Plan: A document or set of documents that integrates and displays 
information relevant to management of a unit of the National Forest 
System.
    Plan area: The National Forest System lands covered by a plan.
    Productivity: The capacity of National Forest System lands and 
their ecological systems to provide the various renewable resources in 
certain amounts in perpetuity. For the purposes of this subpart it is 
an ecological, not an economic, term.
    Public participation: Activities that include a wide range of 
public involvement tools and processes, such as collaboration, public 
meetings, open houses, workshops, and comment periods.
    Responsible official: The official with the authority and 
responsibility to oversee the planning process and to approve plans, 
plan amendments, and plan revisions.
    Reviewing officer: The supervisor of the responsible official. The 
reviewing officer responds to objections made to a plan, plan 
amendment, or plan revision prior to approval.
    Species-of-concern: Species for which the responsible official 
determines that management actions may be necessary to prevent listing 
under the Endangered Species Act.
    Species-of-interest: Species for which the responsible official 
determines that management actions may be necessary or desirable to 
achieve ecological or other multiple use objectives.
    Timber harvest: The removal of trees for wood fiber use and other 
multiple-use purposes.
    Timber production: The purposeful growing, tending, harvesting, and 
regeneration of regulated crops of trees to be cut into logs, bolts, or 
other round sections for industrial or consumer use.
    Visitor opportunities: The spectrum of settings, landscapes, 
scenery, facilities, services, access points, information, learning-
based recreation, wildlife, natural features, cultural and heritage 
sites, and so forth available for National Forest System visitors to 
use and enjoy.
    Wilderness: Any area of land designated by Congress as part of the 
National Wilderness Preservation System that was established in the 
Wilderness Act of 1964 (16 U.S.C. 1131-1136).

Subpart B--[Reserved]

    Dated: April 9, 2008.
Mark Rey,
Under Secretary, NRE.
[FR Doc. E8-8085 Filed 4-18-08; 8:45 am]

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